WA No. 2105 of 2023

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** ## **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 23[RD] DAY OF JANUARY 2024 / 3RD MAGHA, 1945 WA NO. 2105 OF 2023** **JUDGMENT DATED 17.01.2023 IN WP(C) NO.28741 OF 2021** ## **- APPELLANTS/RESPONDENTS 1 4 IN WPC:** **1 THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEXE-II, THIRUVANANTHAPURAM 695 001, PIN - 695001** - **2 SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, THIRUVANANTHAPURAM 695 005, PIN - 695005** - **3 THE DIRECTOR OF GENERAL EDUCATION, (HIGHER SECONDARY WING) HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM 695 001, PIN - 695001** - **4 THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION** **CIVIL STATION, MALAPPURAM DISTRICT 676 519, PIN - 676519** **BY SRI.SAIGI JACOB PALATTY, SENIOR GOVERNMENT PLEADER** WA NO. 2105 OF 2023 ..2.. ## **RESPONDENTS/PETITIONER 7 5TH RESPONDENT IN WPC:** **1 K.G.PRASAD AGED 57 YEARS S/O.P.K.G KURUP, PRINCIPAL (RETIRED) PMSA MAHSS, CHEMMANKADAVU, KODUR, RESIDING AT SREEHARITHAM, KODUR WEST, MALAPPURAM 676 504, PIN - 676504** **2 THE PRINCIPAL PMSAMA HIGHER SECONDARY SCHOOL, MALAPPURAM DISTRICT 676 505, PIN – 676505** **BY ADVS. SRI.V.A.MUHAMMED SMT.P.A.JENZIA** **THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA NO. 2105 OF 2023 ..3.. ## JUDGMENT ## SHOBA ANNAMMA EAPEN, J. This intra court appeal has been filed by the State and its officials, challenging the judgment dated 17.01.2023 in WP(C) No.28741 of 2021, by which they were directed to reimburse the medical expenses incurred by the writ petitioner. 2. Brief facts of the case are as follows; On 12.06.2019, the first respondent/writ petitioner, while working as Principal in the PMSAMA Higher Secondary School, Chemmankadavu, collapsed due to chest pain and was immediately taken to the nearby Government Taluk Hospital, Malappuram. However, on requirement of urgent medical management, he was referred to a higher centre and accordingly, he was taken to the nearest hospital, viz., Hearts Malabar Super Specialty Hospital, who underwent treatment there till 15.06.2019. Since he was advised for coronary angioplasty, he was admitted there again from 28.06.2019 to 01.07.2019. The actual expenses incurred by the writ petitioner for the treatment was Rs.3,25,000/-. Thereafter, he submitted Ext.P3 application claiming medical reimbursement WA NO. 2105 OF 2023 **==> picture [31 x 7] intentionally omitted <==** dated 09.07.2019 along with bills and other particulars before the fourth respondent, which was forwarded to the third respondent and then, to the second respondent. However, as per Ext.P5 letter dated 05.01.2021, the writ petitioner was informed that the medical reimbursement cannot be sanctioned as the hospital, where the petitioner was treated, is a non-empanelled private hospital. Challenging this, the writ petition was filed. The learned Single Judge, after elaborate consideration of the issue, allowed the writ petition by setting aside Ext.P5 and also holding that the writ petitioner is entitled to get reimbursement of the medical expenses incurred by him as evidenced by Ext.P2 and directing the appellants/respondents to reimburse the same within a time frame. Aggrieved by this, the State and its officials have come up in appeal. 3. Learned Senior Government Pleader appearing for the appellants submits that the request of the writ petitioner was to consider reimbursement claimed in connection with the medical expenses incurred in a private hospital, viz., Hearts Malabar Super Specialty Hospital, which is not empanelled by the government. It is also submitted that as per GO(Ms) No.184/2017/H&FWD dated 15.12.2017, during WA NO. 2105 OF 2023 **==> picture [31 x 7] intentionally omitted <==** emergency situations, an employee or a dependent can avail treatment from a private hospital without reference by an authorized medical attendant subject to the condition that the hospital should be empanelled by the government. It is also submitted that there were many empanelled hospitals in Malappuram District during his period of treatment. Pointing out Circular No.34/2020/Fin dated 12.06.2020, it is submitted that the medical expenses incurred in non-empanelled hospitals, including the cases in which ex-post facto sanction accorded by the Health & Family Welfare Department, will not be considered for reimbursement and such a measure has been adopted taking into account the weak financial position of the State to tackle and tide over the current financial crisis. According to the learned Senior Government Pleader, if such claims are allowed, there will be a large number of similar claims to be considered by the government. It is further submitted that as per Rule 8(3) of the Kerala Government Servants’ Medical Attendant Rules, 1960 (KGSMA Rules), the government servants, who have no government medical institutions within a radius of 5 miles of their station, may resort to such private institutions and charges incurred by them would be reimbursed by the government to the extent WA NO. 2105 OF 2023 **==> picture [31 x 7] intentionally omitted <==** they would have received such treatment free in a government institution or at the hands of an authorized medical attendant. It is also clarified therein that private institutions recognised for treatment in Rule 8(3) should be resorted to only in cases of emergency and not as a routine course. According to the learned Senior Government Pleader, the learned Single Judge has gone beyond the provisions and allowed the writ petition in violation of the provisions and rules. 4. Per contra, learned counsel for the first respondent/writ petitioner submits that having chest pain, the writ petitioner collapsed and was immediately taken to the Government Taluk Hospital, Malappuram and the consultant, who gave him the first aid, advised an urgent management at a highest centre as per Ext.P1 referral letter. Since he was in a very critical situation where every minute that passes without treatment can lead to permanent damage to the heart muscle and increase the risk of death, he was taken to the nearest hospital, viz., Hearts Malabar Super Specialty Hospital, Malappuram. Pointing out to the medical records, learned counsel for the first respondent/writ petitioner submitted that the writ petitioner had suffered an Acute WA NO. 2105 OF 2023 **==> picture [31 x 7] intentionally omitted <==** Inferior Wall Myocardial Infarction (IWMI), which is a type of heart attack that affects the lower portion of the heart’s main pumping chamber (left ventricle). It is further submitted that an emergency Percutaneous Coronary Intervention (PCI) was needed to restore blood flow to a blocked vessel in the Left Circumflex Artery (LCX), which is one of the main coronary vessels; and in order to save the life of the respondent, treatment was taken in the said hospital. According to the learned counsel, in such an emergent situation, it may not be possible to put his life at risk by roaming around for a recognized far away hospital and it is only because of the non availability of the facilities in the government hospital to meet such an emergent situation that he was taken to the Hearts Malabar Super Specialty Hospital, Malappuram. It is further submitted that the learned Single Judge, on correctly appreciating the facts, allowed the writ petition and hence, the impugned judgment does not call for any interference. 5. We have heard the learned Senior Government Pleader as well as the learned counsel for the first respondent/writ petitioner. 6. It is discernible from GO(Ms) No.184/2017/H&FWD dated 15.12.2017 that during emergency situations, an WA NO. 2105 OF 2023 **==> picture [31 x 7] intentionally omitted <==** employee or a dependant can avail treatment from private hospitals, but, the said hospital should be empanelled by the government. From the facts of the case, it is clear that the writ petitioner was initially taken to the Government Taluk Hospital, Malappuram, and it was only due to lack of facilities in the said hospital to intervene in the urgent medical situation, the writ petitioner was referred to a higher centre in order to save his life. It is true that as per Circular No.34/2020/Fin dated 12.06.2020, it has been instructed that the medical expenses incurred in non-empanelled hospitals, including the cases in which ex-post facto sanction accorded by the Health & Family Welfare Department, will not be considered for reimbursement. However, in an emergent situation which the writ petitioner faced, no prudent man can think otherwise than to take him to a nearest hospital, where he gets a proper medical intervention. As far as the disease of the writ petitioner is concerned, in order to save his life, it was necessary that he has been taken to a hospital where advanced treatment facilities such as angioplasty or coronary artery bypass surgery can be done. 7. While allowing the writ petition, the learned Single Judge, referred to the decision of the apex court in Shiva Kant WA NO. 2105 OF 2023 **==> picture [31 x 7] intentionally omitted <==** Jha v. Union of India [(2018) 16 SCC 187], wherein it has been held that the right to medical claim cannot be denied merely because the name of the hospital is not included in the government order. In State of Punjab & Others v. Mohinder Singh Chawla [AIR 1997 SC 1260], the apex court has observed that the right to health is integral to the right to life, and the government has a constitutional obligation to provide health facilities to its servants and if a government servant suffers an ailment that requires treatment at a specialized approved hospital and the government servant undergoes treatment therein, it is the duty of the State to bear the expenditure incurred by the government servant. 8. Articles 21, 39(e), (f), 41 & 42 of the Constitution of India are meant to ensure a life with human dignity. As per Article 21 of the Constitution, the right to live with human dignity derives its life breath from the Directive Principles of State Policy. The right to live cannot be denied by anyone and it is a right guaranteed under the Constitution. The State Government as well as the Central Government has the right to take any action which will deprive a person of the enjoyment of his basic essentials. 9. The appellants does not have a case that the writ WA NO. 2105 OF 2023 ..10.. petitioner was not in need of an emergent medical intervention. It was very essential that a prompt assistance was to be given to him, who collapsed after a chest pain and was facing a life or death situation. In such circumstances, it may not be possible to roam around and find an empanelled hospital by the government, which is capable of providing an emergent medical intervention. From the medical records, it is clear that if a timely medical intervention was not there, he would have lost his life. The right to health is inextricably linked to the right to life protected by Article 21 of the Constitution of India. Circular No.34/2020/Fin dated 12.06.2020 does not make any distinction between elective and emergency interventions and hence, cannot be utilized to deny the writ petitioner the medical reimbursement, to which he is legally entitled. The government, which is to protect the life of citizens, has a constitutional obligation to provide health facilities. If the government is not in a position to provide proper treatment facilities, then, they have to bear the expenditure incurred by the government servant. By simply stating financial stringencies, the government cannot deny treatment expenses which they are under the obligation to provide. Here, the writ petitioner was facing a medical WA NO. 2105 OF 2023 **==> picture [37 x 7] intentionally omitted <==** situation, where he required an urgent treatment. As stated above, it is the duty of the government to provide a proper treatment facility and to provide reimbursement of the medical expenses incurred by a government servant or a dependant. We do not find any reason to interfere with the impugned judgment of the learned Single Judge. Accordingly, the writ appeal is dismissed. Sd/- ## A. MUHAMED MUSTAQUE JUDGE Sd/- SHOBA ANNAMMA EAPEN JUDGE bka/-