Celine P.D. v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN WEDNESDAY, THE 15[TH] DAY OF MARCH 2023 / 24TH PHALGUNA, 1944 ``` ## **`WP(C) NO. 30499 OF 2021`** ## **`PETITIONER:`** ``` CELINE P.D. AGED 57 YEARS HIGH SCHOOL ASSISTANT (RETD.), ST.MARY'S HIGH SCHOOL, ALUVA, ERNAKULAM DISTRICT- (CELINE P.D., W/O.ANTO E.C., AGED 57, ELANJIPPALLY, KALLOOR THEKKUMMURI VILLAGE, POOVATHUSSERY P.O., CHALAKUDY, THRISSUR DISTRICT, PIN-680741). BY ADVS.V.N.SANKARJEE V.N.MADHUSUDANAN R.UDAYA JYOTHI M.M.VINOD M.SUSEELA KEERTHI B. CHANDRAN VIJAYAN PILLAI P.K. C.PURUSHOTHAMAN NAIR ``` ## **`RESPONDENTS:`** - `1 THE STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN-695001.` - `2 THE SECRETARY TO GOVERNMENT HEALTH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN-695001.` - `3 THE SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN-695001.` - `4 THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM DISTRICT, PIN695001.` - `5 THE DIRECTOR OF HEALTH SERVICES, PALAYAM-AIRPORT ROAD, NEAR GENERAL HOSPITAL ROAD, THIRUVANANTHAPURAM DISTRICT, PIN-695035.` - `6 THE DIRECTOR` WP(C).No.30499/2021 **2** ``` GENERAL EDUCATION DEPARTMENT, JAGATHI, THIRUVANANTHAPURAM DISTRICT, PIN-695014. ``` - `7 THE DISTRICT MEDICAL OFFICER ST.THOMAS AUTONOMOUS COLLEGE, NEAR BENNETTE ROAD, KEERANKULANGARA, THRISSUR DISTRICT, PIN-680005.` - `8 THE DEPUTY DIRECTOR OF EDUCATION ERNAKULAM, CIVIL STATION, KAKKANAD P.O., ERNAKULAM DISTRICT, PIN-682030.` - `9 THE DISTRICT EDUCATIONAL OFFICER ALUVA, MINI CIVIL STATION, ANNEX, PERIYAR NAGAR, ALUVA, ERNAKULAM DISTRICT, PIN-683101.` - `10 THE HEAD MASTER ST.MARY'S HIGH SCHOOL, ALUVA, SUB JAIL RD, PERIYAR NAGAR, ALUVA, ERNAKULAM DISTRICT, PIN-683101.` ## **`OTHER PRESENT:`** ``` SRI.K.M.FAISAL, GP ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` WP(C).No.30499/2021 **3** ## **P.V.KUNHIKRISHNAN, J. -------------------------------W.P.(C).No.30499 of 2021** **---------------------------------------------Dated this the 15[th ] day of March, 2023** ## **JUDGMENT** This writ petition is filed with following prayers: i. Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing Exhibit P6 to P8, after calling for the records leading thereto; ii. Issue a writ in the nature of certiorari or any other appropriate writ, order or direction quashing Exhibit P6 to P8, after calling for the records leading thereto; iii. Issue a writ in the nature of mandamus or any other appropriate writ, order or direction directing the respondents to accept Exhibit P3 again and proceed with the same in accordance with law. iv. Pass such other orders as this Honourable Court deems fit and proper in the facts and circumstances of the case. (SIC) WP(C).No.30499/2021 **4** 2. Petitioner underwent treatment for her renal failure at Rajagiri Hospital, Chunanganveli, Aluva. The petitioner underwent kidney transplantation at Nephrology Department of Rajagiri Hospital. The petitioner submitted Ext.P3 application for reimbursement of Rs.5,35,651/- being the expenditure incurred for treatment including the surgery, in accordance to the Kerala Government Servants' Medical Attendance Rules, 1960. The 6[th] respondent issued Ext.P4 fixing the amount at Rs.4,20,359/- as per the Rules. The 6[th] respondent issued Ext.P5 for reimbursing 80% of Rs.4,20,359/-. The 4[th] respondent issued Ext.P6 refusing reimbursement holding that the Nephrology Department of Rajagiri Hospital was not an empanelled or recognised hospital for the purpose of the Rules. The 6[th] respondent issued Ext.P7 returning Ext.P3 application pursuant to Ext.P6. The 8[th] respondent issued Ext.P8 to return Ext.P3 application in the light of Exts.P6 and P7. Aggrieved by the same, this writ petition is filed. 3. Heard the learned counsel for the petitioner and the learned Government Pleader. 4. The main reason for rejecting the application of the WP(C).No.30499/2021 **5** petitioner for reimbursement is that the Nephrology Department of Rajagiri Hospital, Aluva is not included in the list of empanelled hospitals. The Government ordered that, unless the treatment is in an empanelled hospital, the reimbursement application need not be entertained, in circular dated 12.06.2020, which is Reference No.(2) in Ext.P6. But it is a fact that by Ext.P9, the above hospital is included in the list of empanelled hospitals with effect from 28.12.2017. 5. This Court considered similar question in the judgment dated 02.03.2023 in W.P.(C). No.24749/2021. This Court observed that the circular in force as on the date of reimbursement application is to be considered. It will be better to extract paragraph 7 of the above judgment: “7. Admittedly Ext.P8 is a circular issued on 12.06.2020. As on the date of Ext.P1 and as on Ext. P3 and P4, the circular that is applicable is Ext.P7. Since there is delay in considering the reimbursement application, Ext.P8 was relied. It will be an injustice from the part of the Government to rely on a subsequent circular, and consequently reject the claim of the petitioner. The Government has to consider the WP(C).No.30499/2021 **6** application of the petitioner based on the circular in force as on the date of the Ext.P1 application. Moreover, as per Ext.P9 the hospital from which the petitioner underwent the treatment is already listed by the Government in 1997 itself. In such circumstances, according to me, the order passed by the Government is unsustainable.” Admittedly the petitioner in this case submitted the reimbursement application in 2017 and hence circular dated 12.06.2020, which is referred as 2[nd] item in Ext.P6 is not applicable. 6. Moreover, this Court in **George Thomas (Dr.) and Another v. State of Kerala and Others [2022 (1) KHC 844]** , observed like this: “13. I have considered the rival submissions. The entitlement of the 1st petitioner, an Assistant Professor in an affiliated College to get reimbursement of medical bills under the Rules in respect of his father who is stated to be wholly dependent on him is not disputed. The genuineness of the claim made in the bills is also not disputed. The fact that the 2nd petitioner initially sought treatment in General Hospital, Pathanamthitta (Government Medical Institution) and on diagnosed with Carcinoma Rectum was referred to higher center WP(C).No.30499/2021 **7** is also not disputed. On such reference, the 2[nd] petitioner had undergone surgery and treatment in St. Gregorious Medical Mission Hospital, which is a hospital empanelled under the Rules. According to the petitioners, it is after considering the nature of Cancer, advanced age and general health condition of the 2[nd] petitioner, the Medical Oncologist recommended for Laparoscopic surgery. The objection now taken in Ext. P8 is that, the General and Laparoscopic surgery department of St. Gregorious Medical Mission Hospital from where the 2nd petitioner has received the treatment is not recognized by the Government. Going by Ext. P2, Medical Oncology and Surgical Oncology departments of the Hospital are recognized by the Government. Surgical Oncology is a field of medicine that uses surgery to treat cancer. Surgery for Carcinoma Rectum (cancer in the rectum) can be Laparoscopic or open (conventional). In medical terminology, the procedure performed is also called Laparoscopic Oncosurgery. Laparoscopy (keyhole surgery) is one of the types of surgical procedure. Under the Rules, 'medical attendance' includes surgical treatment. The Laparoscopic surgery for Carcinoma Rectum is part of surgical treatment of the 2[nd] petitioner. It is for the Doctor to decide how a patient should be treated and which surgical procedure is safer and suitable to the patient. When Medical and Surgical Oncology department of the Hospital has been recognised by the Government in Ext. P2, the WP(C).No.30499/2021 **8** respondents cannot reject the claim of the 1st petitioner saying that the General and Laparoscopic surgery department from where the 2[nd] petitioner has received the treatment is not recognized by the Government. Undergoing Laparoscopic surgery for Carcinoma Rectum will not make the treatment as one done in a department other than the Medical and Surgical Oncology department in the Hospital. The procedure done and the treatments received at the Hospital is part of the medical and surgical oncology treatments of the 2[nd] petitioner. The Hon'ble Supreme Court in **Shiva Kant Jha** (supra) has observed that while considering the claim for medical reimbursement, what is relevant is whether the claimant had actually taken treatment and the factum of treatment. The Court held:- “17. It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the WP(C).No.30499/2021 **9** ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors / Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds…” 17. The Kerala Government Servants Medical Attendance Rules, 1960 have been framed in exercise of the powers under the proviso to Article 309 of the Constitution of India. It provides for reimbursement of the medical expenses incurred by the government servants and their family as defined therein and subject to the conditions provided therein. Under the Rules and the orders issued thereunder, claim for reimbursement is admissible even if the hospital from which the treatment availed is a private hospital, provided it is empanelled under the Rules, on satisfying the criteria for recognition. The hospital where the 2[nd] petitioner was treated is listed in Ext. P2 Government Order dealing with empanelment of private hospitals for medical reimbursement. There is a Constitutional as well a Statutory obligation on the part of the State to bear the expenses for treatment of the government servant and his family. In the backdrop of Article 21 of the Constitution of India and the Rules issued under the proviso to Article 309, it is impermissible for the WP(C).No.30499/2021 **10** respondents to reject the claim of the 1[st] petitioner for reimbursement of the bills for the reasons stated in Ext. P8. Accordingly, Ext. P8 is set aside. The 1[st] petitioner shall resubmit the applications and bills returned by the 3[rd] respondent through the Principal of the College and the 3[rd] respondent shall forward Ext. P3 and Ext. P4 series, Ext. P5 and Ext. P6 to the 1[st] respondent within two weeks of receipt of the same and the 1[st] respondent shall consider the same afresh in the light of the findings in this judgment and in accordance with law within two months. The amounts due to the 1[st] petitioner pursuant to such order shall be disbursed by the competent authorities among the respondents within one month therefrom. ” 7. In the light of the above judgments of this Court, I think the impugned orders will not stand. The Government has to reconsider the matter. Therefore, this writ petition is allowed in the following manner: 1. Exts.P6 to P8 are set aside. The petitioner will resubmit Ext.P3 to the 10[th] respondent, who in turn will forward it to the competent authority forthwith. The petitioner is free to forward an WP(C).No.30499/2021 **11** advance copy of Ext.P3 to the 1[st] respondent. 2. The 1[st] respondent is directed to reconsider Ext.P3 in the light of the observations in this judgment and pass appropriate orders in the application for reimbursement submitted by the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a stamped certified copy of this judgment, along with the original of Ext.P3. 3. The petitioner will produce a stamped certified copy of this judgment along with a copy of Ext.P3 before the 1[st] respondent for compliance. JV sd/- **P.V.KUNHIKRISHNAN JUDGE** WP(C).No.30499/2021 **12** ## **`APPENDIX OF WP(C) 30499/2021`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE COPY OF THE PENSION DETAILS OF THE PETITIONER SUBMITTED FOR THE PURPOSE OF E-PENSION ORDER DATED 01.06.2020, PPO NO.112058249. Exhibit P2TRUE COPY OF THE PRESCRIPTION AND REFERENCE DATED 18.07.2016. Exhibit P3TRUE COPY OF THE PETITIONER'S APPLICATION DATED 20.09.2017, WITH APPENDIX II FORM, DECLARATION, RECOMMENDATION FOR MEDICAL REIMBURSEMENT AND ESSENTIALITY CERTIFICATE (WITHOUT MEDICAL BILLS) SUBMITTED TO THE 4TH RESPONDENT. Exhibit P4TRUE COPY OF THE LETTER NO.R1- 61218/2019/DHD DATED 02.03.2020 ISSUED BY THE 5TH RESPONDENT TO THE 6TH RESPONDENT. Exhibit P5TRUE COPY OF THE 6TH RESPONDENT'S LETTER NO.R2/28193/2018/D.G.E DATED 20.11.2020 TOT HE 4TH RESPONDENT. Exhibit P6TRUE COPY OF THE 4TH RESPONDENT'S LETTER NO.P3/29/2021/G.E.D DATED 13.04.2021 ISSUED TO THE 6TH RESPONDENT. Exhibit P7TRUE COPY OF THE LETTER NO.R2/28193/18/D.G.E DATED 22.09.2021 ISSUED BY THE 6TH RESPONDENT. Exhibit P8TRUE COPY OF THE LETTER NO.G4/9404/2020/K.DIS. DATED 13.10.2021 ISSUED BY THE 8TH RESPONDENT TO THE 9TH RESPONDENT. Exhibit P9TRUE COPY OF THE GOVERNMENT ORDER G.O(P)NO.83/2017/H&FWD DATED 28.12.2017. Exhibit P10TRUE COPY OF THE ORDER DATED 11.10.2019 IN O.A.NO.1502/19 OF THE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ``` WP(C).No.30499/2021 **13** ``` Exhibit P11TRUE COPY OF THE G.O. (RT)NO.1052/2020/R.D DATED 13.03.2020. Exhibit P12TRUE COPY OF THE PROCEEDINGS NO.A3- 4637/2016 DATED 01.07.2020 OF THE TAHASILDAR, ALUVA. ```