Sunu George v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 14TH DAY OF NOVEMBER 2017/23RD KARTHIKA, 1939** ## **WP(C).No. 21627 of 2016 (C)** **----------------------------** ## **PETITIONER :** **---------------------** **SUNU GEORGE, AGED 39 YEARS, HSST COMPUTER SCIENCE, ST.JOSEPH HSS, AVINISSERY, THRISSUR.** **W/O. PEARL K.DAVIS, ''PRATHEEKSHA'', GANDHINAGAR PUTHEN VETTUVAZHY, EAST FORT, THRISSUR.** **BY ADVS.SRI.P.SREEKUMAR SRI.S.GANESH SRI.PAUL JACOB SRI.PEARL K.DAVIS** ## **RESPONDENT(S):** **----------------------------** **1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695 001.** **2. THE DIRECTOR, DHSE, THIRUVANANTHAPURAM -695 001.** **3. THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, ERNAKULAM -682 030.** ## **R1 TO R3 BY SR GOVERNMENT PLEADER SMT.MARY BEENA JOSEPH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C).No. 21627 of 2016 (C) ------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **-----------------------------------------** **EXHIBIT P1. COPY OF THE GO DATED 30.4.2011.** **EXHIBIT P2. COPY OF THE O.P.TICKET ISSUED BY SUPERINTENDENT, MEDICAL COLLEGE HOSPITAL TRISSUR DATED 19.1.2015.** **EXHIBIT P3. COPY OF THE ESSENTIALITY CERTIFICATE ISSUED BY THE CONSULTANT CARDIAC SURGEON AND ITOD LISIE HOSPITAL, ERNAKULAM.** **EXHIBIT P4. COPY OF THE APPLICATION ALONG WITH ALL RELEVANT DOCUMENTS.** **EXHIBIT P5. COPY OF THE RELEVANT PAGE OF ORDER NO.A6/3152/MR/HSE/2015.** **RESPONDENT(S)' EXHIBITS: NIL** **------------------------------------------** **/TRUE COPY/** **P.A.TO JUDGE** **sts** ## **P.V.ASHA J.** **-----------------------------------W.P.(C).No.21627 of 2016 ------------------------------------** Dated this the 14[th] day of November, 2017 ## **J U D G M E N T** Petitioner, who is a Higher Secondary School teacher, has filed this writ petition aggrieved by Ext.P5 letter by which the claim for medical reimbursement has been returned on the ground that the petitioner's mother, who underwent treatment, is a service pensioner. 2. Petitioner's case is that her family consists of her husband, two children and her mother aged 74 years. Her mother is a retired Headmistress. She underwent a heart surgery, on 20.01.2015 at Lissie Hospital, Ernakulam. She underwent hospitalization for the period from 20.01.2015 to 07.02.2015. The medical expenses came to a sum of Rs.8,34,265/-. Claiming medical reimbursement towards the aforesaid treatment of her mother, petitioner submitted Ext.P4 application before the Regional Deputy Director. But, without forwarding the same to Government, the 3[rd] respondent returned it to the petitioner as per Ext.P5 letter, saying that petitioner's mother is a W.P.(C).No.21627 of 2016 2 pensioner. Petitioner submits that petitioner's mother who retired as a teacher was drawing a pension of Rs.22180/-; and she was unable to meet the expenditure incurred for the treatment. Petitioner submits that her mother is wholly dependent on her and she, being the only daughter, had to meet the entire expenditure, towards the treatment, except to the extent it was covered by an insurance policy. She submitted an application for medical reimbursement, in those circumstances. 3. The 3[rd] respondent has filed a statement, saying that the petitioner submitted the application claiming medical reimbursement of a sum of Rs.7,31,549/- saying that she is wholly dependent on her. Since petitioner's mother is a retired Government servant, in receipt of service pension, the claim was found inadmissible and hence the application was returned to the Principal of the School. It is stated that as per Circular No.64215/G2/2004/H&FWD dated 31.03.2004, only those who are wholly dependent on the Government servants are eligible for medical reimbursement. It is also stated that Government has in G.P.(P) No.456/79 (41)/Fin dated 05.05.1979 ordered that the facility of medical reimbursement will not be allowed to a pensioner if they W.P.(C).No.21627 of 2016 3 are in receipt of medical allowance. It is stated that as per the said Government Order retired hands are also eligible for medical reimbursement. According to the 3[rd] respondent, Government has issued a clarification on 10.11.1987, regarding the medical reimbursement claim of retired Government servants which states that the expenses incurred in connection with the treatment of the spouse of a Government employee can be reimbursed according to the rules even if the spouse is a retired Government employee. However, it is stated that petitioner's claim is not admissible since mother is a service pensioner. 4. Petitioner points out that the rules do not stand in the way of reimbursement and therefore, 3[rd] respondent ought to have forwarded the application to the Government. 5. Heard the learned Counsel for the petitioner and the learned Government Pleader. 6. Sri. P. Sreekumar, the learned counsel for the petitioner, relied on the judgment of the Apex Court in **State of Madhya Pradesh v. M.P.Ojha & Another** [JT 1997 (10) SC 351] in which the expression “wholly dependent” was interpreted in a case where the father, who was a pensioner underwent treatment and reimbursement claim was W.P.(C).No.21627 of 2016 4 rejected. The Apex Court found that even though, the father was a pensioner, who was having a meager pension, just because he was drawing pension, it cannot be said that he is not wholly dependent on the son. The following paragraph of the judgment is relevant which reads as follows: “The expression “wholly dependent” is not a term of art it has to be given its due meaning with reference to the Rules in which it appears. We need not make any attempt to define the expression “wholly dependent” to be applicable to all cases in all circumstances. We also need not look into other provisions of law where such expression is defined. That would likely to lead to results which the relevant Rules would not have contemplated. The expression “wholly dependent” has to be understood in the context in which it is used keeping in view the object of the particular Rules where it is contained. We cannot curtail the meaning of “wholly dependent” by reading into this the definition as given in SR8 which has been reproduced above. Further, the expression “wholly dependent” as appearing in the definition of family as given in Medical Rules cannot be confined to mere financial dependence. Ordinarily dependence means financial dependence but for a member of family it would mean other support, may be physical, as well. To be “wholly dependent” would therefore include both financial and physical dependence. If support required is physical and a member of the family is otherwise financially sound he may not necessarily be wholly dependent. Here the father was 70 years of age and was sick and it could not be said that he was not wholly dependent on his son. Son has to look after him in his old age. Even otherwise by getting a pension of Rs.414/- per month which by any standard is a paltry amount it could not be said that the father was not “wholly dependent” on his son. That the father had a separate capacity of being a retired Government servant is immaterial if his case falls within the medical Rules being a member of the family of his son and wholly dependent on him. A flexible approach has to be adopted in interpreting and applying the Rules in a case like the present one. There is no dispute that the son took his father to Bombay for treatment for his serious ailment after W.P.(C).No.21627 of 2016 5 getting due permission from the competent authority. It was submitted before us that the father being a retired Government servant could himself get sanction for treatment outside the State as a special case from the competent authority. It is not necessary for us to look into this aspect of the matter as we are satisfied that under the relevant Medical Rules, the father was member of the family of his son and was wholly dependent on him and the 2[nd] respondent was thus fully entitled to reimbursement for the expenses incurred on the treatment of his father and other travelling expenses.” (emphasis supplied) 7. The findings of the Apex Court are applicable in this case also. In the case of petitioner's mother also, even though she is drawing pension, she is unable to meet the expenditure. It is the duty of the petitioner to look after her mother, she being the only daughter and to meet the expenditure. Therefore, it cannot be said that the medical reimbursement is not admissible on the ground that she is not 'wholly dependent', when those expressions require liberal interpretation as held by the Apex Court. 8. Yet another contention of the 3[rd] respondent is that the mother herself is entitled to get reimbursement. But according to the petitioner, the pensioners like petitioner's mother are not allowed reimbursement of medical expenses. Even assuming that any such benefits are ordered there will not be any duplicate claim for the same treatment, that too through the very same department. W.P.(C).No.21627 of 2016 6 9. In these circumstances, the only conclusion that can be arrived at is that the action of the 3[rd] respondent in returning the claim for reimbursement i.e in not forwarding the application of petitioner to Government through proper channel, can be only be found as arbitrary. In view of the above circumstances, there shall be a direction to the petitioner to re-submit the application Ext P4 before the 3[rd] respondent within a period of 'two weeks' from the date of receipt of a copy of the judgment. There shall be a further direction to the 3[rd] respondent to forward Ext.P4 application for reimbursement, to the Government, through proper channel, within a period of 'two weeks' from the date of receipt of the application from the petitioner and Government shall consider the application Ext.P4, in the light of **M.P.Ojha** 's case (supra) and to pass orders on the sanctioning of medical reimbursement, within a further period of 'two months'. Sd/- **P.V.ASHA, JUDGE.** AS