V.Jayabalan v. Secretary to Government Finance (Treasuries and Accounts I) Department Fort St.George

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 15.09.2009CORAM:THE HON'BLE MR.JUSTICE D.HARIPARANTHAMANW.P.No.14216 of 2007V.Jayabalan... PetitionerVs.

Secretary to Government Finance (Treasuries and Accounts I) Department Fort St.George, Chennai – 600 009.

Commissioner of Treasuries and Accounts Panagal Building, Saidapet, Chennai – 600 015.

Treasury Officer District Treasury, Thanjavur.... RespondentsPRAYER: This Writ Petition came to be numbered under Article 226 of the Constitution of India by way of transfer of O.A.No.16 of 2003from the file of Tamil Nadu Administrative Tribunal with a prayer to call for the records relating to the impugned order passed by the 1strespondent herein in his proceedings Govt. Lr.No.8801/KaKa2/2002-1dated 05.03.2002 and quash the same and consequently direct the respondents to sanction the Medical reimbursement to the applicant asper the proposal sent by the 2nd respondent in his proceedings Na.Ka.73040/2000/H.4 dated 28.01.2002. For Petitioner: Mrs. Nirmala DaisyFor Respondents :Mr.P.Muthukumar Government AdvocateO R D E RThe Original Application in O.A.No.16 of 2003 before the Tamil Nadu Administrative Tribunal is the present writ petition. 2. The petitioner is a Superintendent in District Treasury, Thanjavur. His son, who was an Engineering student, aged 23 years, was admitted in Apollo Speciality Hospital, Chennai on 05.11.1999 and underwent surgery of "Total Hip Replacement" on 06.11.1999. He was suffering from Rheumatoid Arthritis. He was discharged from the hospital on 12.11.1999. The petitioner made a claim on 14.09.2000for medical reimbursement of Rs.1,22,959/-. https://hcservices.ecourts.gov.in/hcservices/

3. The third respondent, passed an order dated 17.10.2000,rejecting the claim made by the petitioner, on two grounds. Thefirst ground was that the claim was made belatedly. The second ground was that for undergoing surgery for Rheumatoid Arthritis, the petitioner could not make a claim, since the same was not included as the specialised advanced surgery under the Rules. 4. The second respondent sent a revised proposal dated28.01.2002 to the first respondent, wherein, it is stated that the surgery was not for Rheumatoid Arthritis and on the other hand, it was "Total Hip Replacement". The son of the petitioner, sufferedhip movements due to Rheumatoid Arthritis and the suffering was due to the said disease and however, the surgery was "Total Replacementof Hip", which was nothing to do with Rheumatoid Arthritis. In the said revised proposal dated 28.01.2002, the second respondent further stated that since the son of the petitioner was in the hospital, the petitioner was mentally affected due to the family circumstances and there was a delay in submitting the application, claiming medical reimbursement and the delay could be condoned. However, the first respondent, passed an order dated 05.03.2002, confirming its earlier order. 5. Aggrieved by the same, the petitioner filed OriginalApplication in O.A.No.16 of 2003 (W.P.No.14216 of 2006) to quash the order of the first respondent, rejecting the claim made by the petitioner for reimbursement of the expenses spent for the "Total HipReplacement" surgery for his son. 6. Heard Ms.Nirmala Daisy, learned counsel for the petitioner and Mr.P.Muthukumar, learned Government Advocate for the respondents. 7. The Government of Tamil Nadu issued G.O.Ms.No.400,Finance (Salaries) Department, dated 29.08.2000, providing for reimbursement of medical expenses for certain surgeries and treatments. Para 4 of the aforesaid G.O., read with item No.II of Schedule – I in Annexure – I are relevant for the purpose of this case and the same are extracted here-under: "

The Government, after careful examination on the recommendations of the Director of MedicalEducation / Director of Medical and Rural HealthServices, pass the following orders:-1) the specialised advanced surgery/treatmentwhich were approved earlier are now classified under the broad based groups as indicated in the Annexure Ito this order. https://hcservices.ecourts.gov.in/hcservices/ 2) the private hospitals which were accredited already in the references fifth to eleventh read above have ceased to be in the approved list forthwith.3) the revised accredited list of hospitals and the specialisation for which the hospitals are approved is indicated in the Annexure II to this order. "......................Annexure – 1Schedule – 1List of Diseases classified under the broad based specialities:I............II. Orthopaedic Surgery1.Total Hip replacement2.Total Knee replacement"Therefore, Item No.II(1) of Schedule – 1 in Annexure – 1 of the saidG.O., makes it clear that the Government employees are entitled to reimbursement of medical expenses for "Total Hip replacement".

Therefore, the second respondent while resubmitting the claim of the petitioner in his letter dated 28.01.2002, clearly stated that the son of the petitioner underwent "Total Hipreplacement" surgery, which is covered under the Tamil NaduGovernment Employees Health Fund Scheme. The letter of the second respondent dated 28.01.2002, resubmitting the claim of the petitioner makes it very clear that Rheumatoid Arthritis caused restricted lefthip movement, necessitating "Total Hip replacement" by way of surgery.

The aforesaid statement of the second respondent in the letter dated 28.01.2002, is supported by the discharge summary dated12.11.1999, issued by the Apollo Speciality Hospital, Chennai, which performed "Total Hip replacement" on the son of the petitioner.

Hence, the reasons stated for rejecting the claim of the petitioner are not valid reasons. The attitude of the Governmentauthorities in dealing with matters relating to reimbursement of medical claim and rejecting the same on technical grounds was disapproved by this Court and by the Honourable Supreme Court by acatena of decisions. The very purpose of the provision of medical reimbursement is pursuant to Article 21 of the Constitution. Therefore, this Court has repeatedly held that the reimbursement claim could not be rejected on technicalities. The real test is whether actually the patient was treated and underwent surgery. Ifit is so, the authorities could not reject the claim on technical grounds, such as, the disease was not a listed one and the hospitalis not a listed hospital and the claim is made belatedly, etc.

In this regard, the learned counsel for the petitioner has relied on a judgment of this Court in V.PALANIAMMAL VS. SECRETARYTO GOVERNMENT reported in 2008 (2) MLJ 852. Para 6 of the judgmentis extracted here-under: "6. Such a detailed reference to different kinds of treatment falling under open heart surgery only shows that while all the above treatments falling under Clause a to g came within the common category of open heart surgery which was the treatment already provided for in the earlier Government Ordersincluding G.O.Ms.No.400 dated 29.8.2000, the present expanded classification of the said open heart surgery cannot be construed as an inclusion of new treatment in order to state that for such a treatment the eligibility would arise only after the issuance of the present G.O.Ms.No.378 dated 13.10.2005. Similarly, such a view has been expressed by Justice D.Murugesanin the decision in E.Ramalingam v.

The other ground for rejecting the claim is that the claim was made belatedly. In the reply affidavit, it is stated inpara 5 that the claim was not preferred within 60 days from the date of discharge from the hospital as per the rules governing Tamil NaduGovernment Employees Health Fund Scheme and that the claim was preferred after 306 days from the date of discharge from the hospital.

Neither the impugned order dated 17.01.2001 nor the order dated 05.03.2002 give the concerned Rule, which prescribes time limit for making claim for medical reimbursement. On the other hand,G.O.Ms.No.400, Finance (Salaries) Department, dated 29.08.2000, the very scheme providing for medical reimbursement, nowhere stipulates any time limit. Even assuming that a time limit is prescribed, the same cannot be quoted to deny the very claim itself. The purpose of prescribing time limit was only for reimbursement of the medical expenses at an early date. The purpose was not to deny the claim. In fact, the issue came for consideration by a Division Bench of this Court in W.P.No.27368 of 2008 dated 15.12.2008. The relevant parasfrom the said judgment are extracted here-under: https://hcservices.ecourts.gov.in/hcservices/ "

In similar case of E.Ramalingam vs. TheDirector of Collegiate Education (2006(4) CTC 832),taking into consideration the fact that rejection of the claim for medical reimbursement which was submitted after delay of 23 days excluding 60 days from the date of discharge was illegal, this Courtheld that the time limit prescribed cannot be strictly construed as Government order is beneficialExecutive Order in order to claim medical reimbursement. This Court further held that realtest must be factum of treatment before medical claimis honoured.

In the present case, the respondents have not disputed the factum of treatment. It is also not in dispute that the treatment for ailment both as indoor patient and outdoor patient after operation at postoperative stage, by way of physiotherapy, as stated by the petitioner. In such a situation, nobody can take the date of release from the hospital as the cutoff date to count some sort of period of limitation to reject the application. Further, we find that the scheme for medical reimbursement under the Tamil NaduGovernment Employees Health Fund Rules, 1991 is abeneficial legislation, wherein no time limit is fixed by the Government under the Rules. In such asituation, giving reference to the Commissioner of Treasuries letter dated 26th July, 1999 for quick disposal of claims, the Special Secretary of the Government has no jurisdiction to frame a time limit of 60 days from the date of discharge from the hospital to file a claim for medical reimbursement.

In the case of State of Punjab and others Vs.Mohinder Singh Chawla and others (1997(2) SCC 83),taking into consideration that the claim for medical reimbursement cannot be denied on the ground that itis contrary to the Government resolution dated 25thJanuary, 1991 of the said case, the Supreme Courtobserved, as right to health is integral to the right to life and the Government is under a constitutional obligation to provide health facilities.