Dr. George Thomas and Thomas George v State of Kerala and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN`** ``` MONDAY, THE 31[ST] DAY OF JANUARY 2022 / 11TH MAGHA, 1943 ``` ## **`WP(C) NO. 3295 OF 2021`** ## **`PETITIONERS:`** - `1 DR.GEORGE THOMAS,AGED 37 YEARS S/O THOMAS GEORGE, 'SANKARATHIL', VADAKKUPURAM P.O PATHANAMTHITTA, PIN-689 653, (ASSISTANT PROFESSOR, DEPARTMENT OF PHYSICS, CATHOLICATE COLLEGE, PATHANAMTHITTA).` - `2 THOMAS GEORGE,AGED 76 YEARS,SANKARATHIL, VADAKKUPUARM P.O.,PATHANAMTHITTA, PIN-689 653.` ``` BY ADVS. JACOB P.ALEX SRI.JOSEPH P.ALEX SHRI.MANU SANKAR P. ``` ## **`RESPONDENTS:`** - `1 STATE OF KERALA,REPRESENTED BY ITS SECRETARY, DEPARTMENT OF HIGHER EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.` - `2 DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE OF COLLEGIATE EDUCATION, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN-695 033.` - `3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, DEPUTY DIRECTORATE OF COLLEGIATE EDUCATION, VAYASKARAKUNNU, NEAR FIRE STATION, KOTTAYAM, PIN686001.` - `4 DIRECTOR OF HEALTH SERVICE, DIRECTORATE OF HEALTH SERVICES, GENERAL HOSPITAL JUNCTION, THIRUVANANTHAPURAM, PIN-695 035.` - `5 DISTRICT MEDICAL OFFICER (HEALTH), PATHANAMTHITTA, OFFICE OF DMO, CIVIL STATION, PATHANAMTHITTA, PIN-689 645.` - `*6 DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KERALA, REPRESENTED BY ITS SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695001.` W.P.(C) 3295/2021 2 ``` *(ADDL.R6 IMPLEADED AS PER ORDER DATED 5-3-2021 IN IA 1/2021 IN WPC). ``` ## `BY GOVERNMENT PLEADER SRI.JIMMY GEORGE` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` W.P.(C) 3295/2021 3 ## **JUDGMENT** The 1[st] petitioner is working as an Assistant Professor in Catholicate College, Pathanamthitta. On 14.05.2018, the 2[nd] petitioner, the father of 1[st] petitioner who is wholly dependent on 1[st] petitioner sought treatment in General Hospital, Pathanamthitta and was diagnosed with Carcinoma Rectum and was referred to higher center. Accordingly, he was taken to Medical and Surgical Oncology Department of the St. Gregorious Medical Mission Hospital, Pathanamthitta which is a private specialty hospital for Cancer treatment. The Consultant Medical Oncologist opined that the 2[nd] petitioner has to undergo surgery and accordingly he was operated in the Laparoscopic W.P.(C) 3295/2021 4 Department of St. Gregorious Medical Mission Hospital. 2.The Government have issued Ext. P2 G.O.(P) No.10/2016/H&FWD dated 21/01/2016 empanelling certain private hospitals for treatment to facilitate medical reimbursement benefits under the Kerala Government Servants Medical Attendance Rules, 1960 (the 'Rules', for short). The name of St. Gregorious Medical Mission Hospital, Pathanamthitta (hereinafter referred to as the 'Hospital') appears at serial No. 20 of the Annexure to Ext. P2 G.O which provides for the list of private hospitals recognised by the Government for treatment under Rule 8 (3) of the Rules and the Departments recommended include Medical W.P.(C) 3295/2021 5 and Surgical Oncology. The relevant portion of the Annexure to Ext. P2 G.O which provides for the list of private hospitals for empanelment is reproduced hereunder: |Sl.<br>No.|Name of Hospital|Department<br>recommended| |---|---|---| |20|St.<br>Gegorious<br>Medical<br>Mission<br>Hospital,<br>Pathanamthitta.|Nephrology,<br>Trauma<br>Care, Neuro Surgery,<br>Medical and Surgical<br>Oncology,<br>Gastroenterology,<br>Neonatology, Urology,<br>Neurology,<br>Physiotherapy.| 3. According to the petitioners, the 2[nd] petitioner was initially admitted in the Hospital between 30.05.2018 and 09.06.2018 and during this period, 1[st] petitioner had incurred an amount W.P.(C) 3295/2021 6 of Rs.1,98,311/- towards treatment of the 2[nd] petitioner. The 1[st] petitioner submitted Ext. P3 application seeking reimbursement of Rs. 1,98,311/- with the required proforma issued by the Authorized Medical Attendant and Essentiality Certificate certifying that the medicines prescribed were essential for the recovery of the patient. Out of Rs. 1,98,311/- claimed in Ext. P3, the office of the Director of Health Service found that reimbursement claim for an amount of Rs. 1,26,368/- is admissible. 4. The 2[nd] petitioner had undergone further treatment in the Hospital between 12/06/2018 and 23/06/2018. During this period, the 1[st] petitioner incurred an amount of Rs.65,756/- and submitted W.P.(C) 3295/2021 7 Ext.P4 application dated 23/11/2018 seeking reimbursement of Rs. 62,756/-. The District Medical Officer (DMO), by Ext.P4 (b), found that, out of the aforesaid amount claimed, an amount of Rs. 23,580/- is admissible and forwarded necessary documents to the Deputy Director of Collegiate Education for approval. 5. The 2[nd] petitioner was again admitted in the Hospital from 22/08/2018 to 01/09/2018. During this spell, the 1[st] petitioner incurred an amount Rs. 86,744/- and he submitted Ext. P5 application seeking reimbursement of an amount of Rs. 86,744/-. The 2[nd] petitioner was further admitted in the Hospital from 04/09/2018 to 19/09/2018 and the 1[st] petitioner submitted Ext. P6 application W.P.(C) 3295/2021 8 seeking reimbursement of an amount of Rs. 1,20,227/-. 6. While so, on 12/06/2020, the Government issued Ext. P7 circular stating that medical reimbursement will not be made unless the treatment was availed in Government recognized private hospital. Based on Ext. P7, the Government issued Ext. P8 communication informing that the claim made by the 1[st] petitioner cannot be allowed since the department of Laparoscopic surgery at St. Gregorious Medical Mission Hospital was not empanelled under the Rules. Accordingly, by Ext. P9 letter addressed to the Principal of the College, the Deputy Director of Collegiate Education returned the applications and W.P.(C) 3295/2021 9 bills of the 1[st] petitioner for reimbursement. Challenging Exts. P7 and P8, the petitioners have filed this writ petition. They have also sought for a declaration that the 1[st] petitioner is entitled for reimbursement of an amount of Rs. 4,68,038/- as claimed in Exts. P3 and P4 series, Ext. P5 and Ext. P6 and for disbursement of the same. 7. As stated earlier, considering Ext. P4 application, the DMO, vide Ext. P4 (b), informed the Deputy Director of Collegiate Education that, out of the amount of Rs.62,756/- claimed by the 1[st] petitioner, an amount of Rs. 23,580/- is admissible. During the pendency of the writ petition, the Government have issued Ext. P10 order sanctioning Rs.18,864/-, being 80% of the W.P.(C) 3295/2021 10 amount found admissible in Ext. P4 (b). In Ext. P10, the Government have stated that the 2[nd] petitioner was referred to General and Laparoscopic Department by the Medical Oncologist and considering that the treatment was taken on reference from recognized department, sanction is accorded for reimbursement of 80% of the amount found admissible by the DMO. 8. A Statement is filed on behalf of the 1[st] respondent wherein it is stated that the Government, by Ext. P7 circular, have decided not to give the reimbursement to patients who had taken treatment from private hospitals other than the empaneled one. Since the General and Laparoscopic surgery department of St. Gregorious W.P.(C) 3295/2021 11 Medical Mission Hospital from where the 2[nd] petitioner has received the treatment was not recognized by the Government, it was decided to reject the applications of the 1[st] petitioner. 9. Heard Sri. Jacob P. Alex, the learned counsel for the petitioners and Sri. Jimmy George, the learned Government Pleader for the respondents. 10.According to Sri.Jacob P. Alex, the reimbursement of medical claims incurred in private hospital is admissible under the Rules and from Ext. P2 G.O, it can be seen that St. Gregorious Medical Mission Hospital is empanelled under the Rules. The learned counsel submits that, the doctors in Oncology department of the Hospital, after considering the nature of Cancer, W.P.(C) 3295/2021 12 advanced age and general health condition of the 2[nd] petitioner, the advantages of shorter length of stay at hospital, faster recovery and lesser operative complications, recommended for Laparoscopic surgery and the respondents cannot deny claim for medical reimbursement only for the reason that surgery is performed in Laparoscopic surgery department of the Hospital. Sri. Jacob refers to Ext. P2 and submits that the Medical and Surgical Oncology department of the Hospital is recognised and recommended by the Government. 11.Sri. Jacob contends that, the claim for reimbursement is admissible even if the hospital from which the treatment availed is a private hospital. Relying on the decision of the Hon'ble 13 W.P.(C) 3295/2021 Supreme Court in **Shiva Kant Jha v. Union of India** [(2018) 16 SCC 187: AIR 2018 SC 1975: 2018 KHC 6285], the learned counsel contends that, the right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order and the real test must be the factum of treatment. Ext. P7 circular cannot circumvent the Rules and if reimbursement of medical claims incurred in private hospital is admissible under the Rules, the same cannot be denied by issuing a circular in the nature of Ext. P7. Sri. Jacob also relied on the decision of the Hon'ble Supreme Court in **State of Punjab and others v. Mohinder Singh Chawla and others** [(1997) 2 SCC 83; AIR 1997 SC 1225: W.P.(C) 3295/2021 14 1997 KHC 692] wherein the Court held that, the right to health is integral to right to life and if the government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference whereat the government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the government servant and to reimburse the expenditure. The learned counsel then refers to Ext. P10 and contends that Ext. P4 bill has been approved and therefore, there is no justification in denying the claims in Ext. P3 series, Ext. P5 and Ext. P6. Sri. Jacob refers to the Division Bench decision of this Court in **Central Provident Fund Commissioner, New Delhi and others v.** W.P.(C) 3295/2021 15 **N. Satheesan and another** [2018 (1) KHC 921] to contend that effecting part payment of the claim itself is a ground to presume that the genuineness of the claim is not in dispute. 12. Per contra, Sri. Jimmy George would contend that, based on the present financial constraints, the Government, by Ext. P7 circular, have decided not to give the reimbursement to patients who had taken treatment from private hospitals other than the empaneled one and since the General and Laparoscopic surgery department of St. Gregorious Medical Mission Hospital from where the 2[nd] petitioner has received the treatment was not recognized by the Government, it was decided to reject the applications of the 1[st] W.P.(C) 3295/2021 16 petitioner. 13. I have considered the rival submissions. The entitlement of the 1[st] 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 2[nd] petitioner initially sought treatment in General Hospital, Pathanamthitta (Government Medical Institution) and on diagnosed with Carcinoma Rectum was referred to higher center is also not disputed. On such reference, the 2[nd] petitioner had undergone surgery and treatment in St. Gregorious Medical W.P.(C) 3295/2021 17 Mission Hospital, which is a hospital empanelled under the Rules. According to the petitioners, it is after considering the nature of Cancer, advanced and health condition of the 2[nd] age general 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 2[nd] 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 W.P.(C) 3295/2021 18 (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 respondents cannot reject the claim of the 1[st] petitioner saying that the W.P.(C) 3295/2021 19 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:- W.P.(C) 3295/2021 20 “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 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 W.P.(C) 3295/2021 21 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...” 14.It is an admitted fact that the 2[nd] petitioner had undergone surgery for Carcinoma Rectum and was treated in the Hospital during different spells. The reason stated in Ext. P8 to reject the claim of the 1[st] petitioner for reimbursement of the medical bills is not factually and legally sustainable. The 1[st] petitioner is entitled for reimbursement of the amounts incurred for the treatment of the 2[nd] petitioner at the Hospital as per the Rules. W.P.(C) 3295/2021 22 15. Here, it is also pertinent to note that, in Ext. P10 order, the Government while considering Ext. P4 claim of the 1[st ] petitioner and approving the admissible amounts therein have stated that, the 2[nd] petitioner was referred to General and Laparoscopic Department by the Medical Oncologist and considering the treatment taken on reference from recognized department, sanction is accorded for reimbursement of 80% of the amount found admissible by the DMO. In view of the said stand taken by the Government in Ext. P10 in respect of one of the claims for reimbursement submitted by the 1[st] petitioner, the other claims have to be considered on the same basis and reasoning. W.P.(C) 3295/2021 23 16. As held by the Hon'ble Supreme Court in **Mohinder Singh Chawla** (supra), the right to health is an integral part of right to life guaranteed under the Constitution of India and the Government have Constitutional obligation to provide health facilities and bear the expenses incurred by the government servant for the treatment as per the policy of the Government. The Court held: “4.... It is an admitted position that when specialised treatment was not available in the Hospitals maintained by the State of Punjab, permission and approval having been given by the Medical Board to the respondent to have the treatment in the approved hospitals and having referred him to the AIIMS for specialised treatment where he was admitted, necessarily, W.P.(C) 3295/2021 24 the expenses incurred towards room rent for stay in the hospital as an inpatient are an integral part of the expenses incurred for the said treatment. Take, for instance, a case where an is not available in a inpatient facility specialised hospital and the patient has to stay in a hotel while undergoing the treatment, during the required period, as certified by the doctor, necessarily, the expenses incurred would be integral part of the expenditure incurred towards treatment. It is now settled law that right to health is an integral to right to life. Government has constitutional obligation to provide the health facilities. If the Government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference whereat the Government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the Government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee.” W.P.(C) 3295/2021 25 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 W.P.(C) 3295/2021 26 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 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] W.P.(C) 3295/2021 27 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. The writ petition is ordered accordingly. There will be no order as to costs. Sd/- ## **MURALI PURUSHOTHAMAN JUDGE** W.P.(C) 3295/2021 28 ## **`APPENDIX OF WP(C) 3295/2021`** ``` PETITIONER'S EXHIBITS ``` ``` EXHIBIT P1 ``` - `TRUE COPY OF THE F-FDG PET/CT REPORT DATED 18.5.2018 OF THE HOSPITAL` - `EXHIBIT P1 (A) TRUE COPY OF BILL NO 13100 DATED 14.5.2018 ISSUED FROM THE DEPARTMENT OF ONCOLOGY, ST.GREGORIOS MEDICAL MISSION HOSPITAL, PARUMALA` - `EXHIBIT P1( B) TRUE COPY OF BILL NO 13092 DATED 14.5.2018 ISSUED FROM THE DEPARTMENT OF ONCOLOGY, ST.GREGORIOS MEDICAL MISSION HOSPITAL, PARUMALA` - `EXHIBIT P1 (C) TRUE COPY OF BILL NO 14358 DATED 18.5.2018 ISSUED FROM THE DEPARTMENT OF ONCOLOGY, ST.GREGORIOS MEDICAL MISSION HOSPITAL, PARUMALA` - `EXHIBIT P2 TRUE COPY OF THE GO(P) NO 10/2016/H&FWD DATED 21.01.2016` - `EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 13.11.2018 SEEKING REIMBURSEMENT OF RS.1,98,311/-.` - `EXHIBIT P3 (A) TRUE COPY OF THE NECESSARY DOCUMENT PRODUCED IN APPENDIX II ALONG WITH EXHIBIT P3(A)` - `EXHIBIT P3 (B) TRUE COPY OF THE ESSENTIALITY CERTIFICATE DATED 1.11.2018 WITH RESPECT TO EXHIBIT P3` - `EXHIBIT P4 TRUE COPY OF THE APPLICATION DATED 23.11.2018 SEEKING REIMBURSEMENT OF RS. 62756/-` - `EXHIBIT P4 (A) TRUE COPY OF THE ESSENTIALITY CERTIFICATE DATED 1.11.2018 WITH RESPECT TO EXHIBIT P4` W.P.(C) 3295/2021 29 |`EXHIBIT P4 (B)`|`TRUE COPY OF THE LETTER BEARING NO C3-`| |---|---| ||`10603/2019 DATED 2.7.2019`| |`EXHIBIT P5`|`TRUE COPY OF THE APPLICATION DATED 4.2.2019`| ||`SEEKING REIMBURSEMENT OF AN AMOUNT OF RS.`| ||`86744/-`| |`EXHIBIT P6`|`TRUE COPY OF THE APPLICATION DATED 4.2.2019`| ||`SEEKING REIMBURSEMENT OF AN AMOUNT OF RS`| ||`1,20,227/-`| |`EXHIBIT P7`|`TRUE COPY OF THE NOTIFICATION BEARING NO`| ||`34/2020/FINANCE DATED 12.6.2020.`| |`EXHIBIT P8`|`TRUE COPY OF THE COMMUNICATION BEARING NO`| ||`F3/15/2020/H.EDU DEPT. DATED 19.8.2020`| |`EXHIBIT P9`|`TRUE COPY OF THE LETTER BEARING NO`| ||`A3/6379/2020/DCEDDKTM DATED 9.11.2020`| ||`ISSUED BY THE 3RD RESPONDENT TO THE 6TH`| ||`RESPONDENT.`| |`EXHIBIT P10`|`TRUE COPY OF GO(RT)NO.1030/2021/H.E.D DATED`| ||`09.08.2021 ISSUED BY THE 1ST RESPONDENT.`| ## spc/