Tiju K. John v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`FRIDAY, THE 17[TH] DAY OF NOVEMBER 2023 / 26TH KARTHIKA, 1945`** ## **`WP(C) NO. 38763 OF 2015`** ## **`PETITIONER:`** ``` TIJU K.JOHN WIFE OF SIBY, AGED 38 YEARS H.S.S.T. (JR) MATHEMATICS, S.H.MOUNT HIGHER SECONDARY SCHOOL, KOTTAYAM, RESIDING AT THARAPPEL HOUSE, KIDANGOOR, KOTTAYAM DISTRICT. ``` ``` BY ADV SRI.R.DIVAKARAN ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM-PIN 695001. 2THE REGIONAL DEPUTY DIRECTOR HIGHER SECONDARY EDUCATION DEPARTMENT, KOTTAYAM-PIN 6860001. 3PRINCIPAL S.H.MOUNT H.S.S., S.H.MOUNT P.O., KOTTAYAM, PIN 686006. ``` ``` SR.GP.JUSTIN JACOB ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.11.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 38763 OF 2015 ``` ``` 2 ``` ## **JUDGMENT** 1. Ext.P6 order dated 25.09.2015 by the Under Secretary to Government, Health and Family Welfare Department rejecting the medical reimbursement claim of the petitioner on the ground that the treatment was obtained from a hospital which was not in the panel of the Government, is under challenge in the present writ petition. 2. The facts leading to filing of the present writ petition, in brief, are as under: Petitioner is a teacher working in S.H.Mount Higher Secondary School. On 23.04.2014, in connection with severe bleeding was taken to Community Health Center, Koodalloor, Kottayam District. At that time her pregnancy was six months. Doctors who treated the petitioner at Community Health Centre referred her to the Medical College for want of required medical facility and gynecology department. On the way to the Medical College, petitioner felt high blood pressure, concussion and became unconscious and the person accompanied her had no ``` WP(C) NO. 38763 OF 2015 ``` ``` 3 ``` other option but to admit her in Carithas Hospital, Thellakam, Kottayam. On 26.04.2014, delivered premature baby of six(6) months weighing 900 gms. Child was also admitted in NICU (Neonatological ICU) wing of the hospital and was treated up to 07.06.2014. Petitioner suffered acute gastro entrocitis and umbilical hernia and also internal infection from 12.05.2014 to 19.05.2014. 3. After discharge from the hospital, on 09.07.2014, an application for claiming reimbursement for medical expenses was submitted to the 3[rd] respondent – Principal, S.H.Mount Higher Secondary School along with relevant documents and bills. The said application was forwarded to the 2[nd] respondent – Regional Deputy Director Higher Secondary Education Department, but was rejected and returned on the ground that Obstetrics and Gynecology of Caritas Hospital was not approved by the Kerala Government. 4. Learned counsel appearing on behalf of the petitioner submitted that, representation was given again but the same has been rejected by the impugned order. Learned counsel submitted ``` WP(C) NO. 38763 OF 2015 ``` ``` 4 ``` that the law with regard to processing of application for reimbursement even from a hospital which is not recognized by Government of Kerala is no longer res integra in view of the various jus in **George Thomas (Dr.) and Another** v. **State of Kerala and Others** [2022 (1) KHC 844], in **Surjit Singh** v. **State of Punjab and Others** [1996 KHC 702] and **Shiva Kant Jha** v. **Union of India** [2018 KHC 6285]. 5. On the other hand, learned counsel appearing on behalf of the State submitted that the reason assigned in the application for rejection of reimbursement was only non-recognition of hospital where petitioner had been admitted for her delivery. 6. I have heard the learned counsel for the parties and appraised the paper book. 7. It is expedient to extract the contents of the impugned order Ext.P6: As per the reference read as Ist paper above, Smt. Tiju K.John submitted a representation before Secretary, Health&Family Welfare Department requesting to allow the application dated 23.10.2014 for medical reimbursement in connection with her Pre-term delivery treatment at Caritas Hospital, kottayam. As per Government letter read as 2[nd] paper above direction was given to the petitioner to submit ``` WP(C) NO. 38763 OF 2015 ``` ``` 5 ``` application for medical reimbursement claim along with original documents through proper channel. (2) Mean time she has filed WP(C) No 6214/15 before the Hon’ble High Court praying for a directive to the respondents to consider medical reimbursement claim and also to pass orders on Ext P4 representation. In the Judgment read as 3[rd] paper above the Hon'ble High court directed the first respondent, the Secretary, Health & Family Welfare Department to consider Ext.P4 representation within 3 months from the date of receipt of judgment. Accordingly as per Government letter read as 4[th] paper above the petitioner was directed to submit the application for medical reimbursement claim along with original documents through proper channel. (3) The General Education Department ie., the administrative department in respect of the petitioner has forwarded the file dealing with the application for MR Claim in respect of Smt. Tiju K John and the same received in this department on 03.09.2015. After scrutiny, the Director of Health Service has not recommended the medical reimbursement claim Stating that the patient was referred to the Government Medical College Hospital Kottayam from Community Health Centre Koodallur. Moreover Caritas, Hospital koirayam not approved by the Government of Kerala for Medical reimbursement claim and the care is available in the Government Medical College Hospital Kottayam. (4) In the circumstance, the request of the petitioner Smt. Tiju . K. John.HSST in Ext.P4 to allow her application for medical reimbursement claim, cannot be considered and hence rejected ``` WP(C) NO. 38763 OF 2015 ``` ``` 6 ``` (5) The Ext P4 representation is disposed off in the above manner and the direction of the Hon'ble High court in WP(O)No.6214/45 15 Complied with accordingly. 8. On perusal of the above, it is evident that the tenor of the reasoning is on account of non-recognition of the hospital by the Government of Kerala. The aforementioned reasoning in my view is not sustainable in the eyes of law in view of the ratio decidendi culled out in the aforesaid judgments. For the sake of brevity, judgment rendered in **Shiva Kant Jha** supra in paragraphs 13 and 14 reads as under: 13) 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 ``` WP(C) NO. 38763 OF 2015 ``` ``` 7 ``` that taking treatment in Specialty 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 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. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court. 14) This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime ``` WP(C) NO. 38763 OF 2015 ``` ``` 8 ``` consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the concerned Ministry, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals. 9. For the reason aforementioned, impugned order is set aside. Writ petition is allowed. Respondents are directed to process the application of the petitioner for reimbursement of the medical expenses within a period of one month from the date of receipt of the certified copy of this judgment and pay the amount with interest at 6%. In case the amount is not paid within the aforesaid period, thereafter, it shall entail into interest at the rate of 12%. Sd/- **AMIT RAWAL JUDGE** nak ``` WP(C) NO. 38763 OF 2015 ``` ``` 9 ``` ## **`APPENDIX OF WP(C) 38763/2015`** ``` PETITIONER EXHIBITS ``` ``` EXHIBIT-P1:THE TRUE COPY OF THE APPLICATION DATED 9.7.2014. ``` ``` EXHIBIT-P2: ``` ``` A COPY OF THE LETTER SUBMITTED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT DATED 23.10.2014. ``` ``` EXHIBIT-P3: ``` ``` TRUE COPY OF ORDER OF THE 2ND RESPONDENT DATED 5.11.2014 REJECTING THE APPLICATION OF THE PETITIONER FOR REIMBURSEMENT. ``` ``` EXHIBIT-P4: ``` ``` A COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER TO THE 1ST AND 2ND RESPONDENT DATED 14.1.2015. ``` ``` EXHIBIT-P5: ``` - `A TRUE COPY OF JUDGMENT IN WPC 6214/2015 DATED 26.2.2015.` ``` EXHIBIT-P6: ``` ``` TRUE COPY OF THE ORDER NO.G.O.(RT) NO.3110/2015/H & FWD DATED 25.9.2015. ``` ``` EXHIBIT-P7: ``` - `A TRUE COPY OF ORDER IN CON.CASE (C) 1371 OF 2015(S) DATED 7TH OCTOBER 2015.`