Judgment:
1. In this O.A. the primary relief sought by the applicant is quashing and setting aside of the impugned order dated 12.1.2006 (Annexure A-l), with a direction to the respondents to make payment of Rs. 49,290/-, being the balance amount of medical reimbursement claimed on account of his medical treatment, with interest at the market rates.
2. The brief facts of the case are that the applicant stood retired as Assistant from the office of the Director General Supplies and Disposal w.e.f. 28.2.1995. He had a whole-life CGHS Token Card bearing No.P-620727. As the applicant was suffering from severe coronary artery triple vessal disease (Heart ailment), he was taken to Batra Hospital and Medical Research Centre, New Delhi (Batra Hospital, for short). He was examined by the concerned doctor at Batra Hospital and was found in need of undergoing Coronary Artery Bypass Grafting Surgery at the earliest. Chief Cardiac Surgeon of Batra Hospital, in his Certificate dated 27.2.2000, intimated that the cost of this procedure in the Hospital was Rs. 1,25,000/- for Central Government Health Scheme (CGHS, for short) personnel and directed that the Cheque/DD made in favour of Batra Hospital should be deposited at the time of admission.
3. Chief Medical Officer of CGHS Dispensary No. 76, Kali Bari, New Delhi, vide his letter dated 14.3.2000 (Annexure A-3) addressed to the Medical Superintendent, Batra Hospital, conveyed the permission for treatment/investigation/hospitalization of the applicant with a request to provide necessary treatment facilities to him and send necessary bills in this respect to the Additional Director (HQ) CGHS, Nirman Bhawan, New Delhi. The respondents issued a Cheque bearing No. 968596 dated 24.3.2000 for Rs. 80,190/- drawn on Bank of Baroda, Pusa Road, New Delhi, in favour of Batra Hospital. Thereupon, Batra Hospital issued Patient Deposit Receipt No. 305606 dated 29.3.2000 towards advance deposit of Rs. 80,190/-. Applicant was admitted in the Hospital on 3.4.2000 with Admission No. 2004055 for Operative Procedure: CAEG.Open Heart Surgery of the applicant was performed on 4.4.2000.
Applicant made a cash payment of Rs. 44,810/- p.m. his own pocket, as demanded by the said Hospital in advance on 3.4.2000 at the time of his admission. A Patient Receipt for this advance payment of Rs. 44,810/- was issued by Batra Hospital, bearing Receipt No. 305834 dated) 3.4.2000.
4. The applicant was discharged from the Hospital on 14.4.2000 after taking an additional amount of Rs. 13,390/-, vide Bill No. 7162 dated 14.4.2000, with General Advice, Medical Advice and for Follow-up at Batra Cardiac Care Centre. Formal Certificate of this payment of Rs. 13,390/- was, however, issued by the Senior Manager of the Hospital on 16.4.2005. The Hospital refunded a sum of Rs. 8,910/-, out of the sum of Rs. 13,390/- received by them on 14.4.2000. Thus the Hospital had charged a sum of Rs. 1,29,480/- while the respondents had made the advance payment of Rs. 80,190/-. Thus the balance of Rs. 49,290/- is yet to be paid to the applicant.
5. The applicant submitted a representation on 15.4.2002 to the Health Ministry (CGHS Department) and requested for payment of Rs. 49,290/-.
The applicant submitted another representation dated 29.1.2005, but no order was issued for the payment nor any reply was received. The applicant then filed O.A. No. 918/2005 before this Tribunal for redressal of his grievance, which was disposed of, vide order dated 17.5.2005, with a direction to the respondents to consider the representation of the applicant dated 29.1.2005 in the light of the two High Court judgments cited by the applicant and pass a speaking order within a period of three months. Since the direction of the Tribunal was not complied with, within the time allowed, the applicant filed C.P. No. 435/2005 for compliance of the same. Since, in the meantime, the respondents passed an order dated 12.1.2006. rejecting the representation of the applicant, the C.P. was dismissed, vide order dated 19.1.2006, with liberty to the applicant to challenge the order dated 12.1.2006, in accordance with law. Hence the O.A.6. The applicant has stated that the impugned action and the order of the respondents are quite arbitrary, illegal, discriminatory and violative of Articles 14 and 16 of the Constitution of India and principles of natural justice.
7. The applicant has further stated that his case is fully covered by the principle of law laid down by the Hon'ble Delhi High Court and the Tribunal in the following cases in which full reimbursement of the medical expenses incurred by the applicants/petitioners therein for their treatment was directed: (i) M. G. Mahindru v. Union of India and Ors. 2001 (92) DLT (Delhi High Court) 59; (ii) V.K. Gupta v. Union of India and Anr. 2003(1) SLJ (Delhi HC) 195; (iii) J.K. Saxena v. Govt. of NCT of Delhi [WP (C) No. 5015/2003 decided on 16.12.2004]; (iv) Prithvi Nath Chopra v. Union of India 2004(111) DLT (Delhi HC) 190;L.P. Sharma v. Union of India and Ors. 2004(2) ATJ (CAT-PB) 492; and (vii) J. C. Sindhwani v. Union of India and Anr. 2005 (124) DLT (Delhi H.C.) 513.
8. The respondents have stated that in the order of this Tribunal dated 17.5.2005, passed in O.A. No. 918/2005, a direction was given to respondent No. 2, viz., Director, C.G.H.S., to consider the representation dated 29.1.2005 of the applicant in the light of the cases of Shri V.K. Gupta v. Union of India and Anr. (supra) and Mr.
J.K. Saxena v. Govt. of NCT of Delhi (supra), decided by the Hon'ble High Court of Delhi, and to pass a speaking order, within three months from the receipt of a certified copy and communicate the same to the applicant. In. compliance of the aforesaid order dated 17.5.2005 of this Tribunal, the medical claim of the applicant was examined by the C.G.H.S. and it was not found possible to accede to.
9. Respondents have further stated that the rates for reimbursement under CGHS, Delhi were fixed by the Ministry of Health and Family Welfare for two years, vide O.M. dated 18.9.1996, which were revalidated, vide O.M. dated 13.7.1999, till further revision. As per O.M. dated 11.6.1997, the expenditure to be reimbursed by the present Department/Office/ CGHS Directorate, as the case may, is restricted to the package deal rates approved by the Government, from time to time.
The expenditure in excess of the approved rates/package deal would have to be borne by the beneficiary himself/herself.
10. Respondents have argued that the judgments, referred to by the applicant, pertain to the treatment taken in recognized hospital/permitted cases and these are applicable in individual cases.
In this regard, attention has been drawn to the judgment of the Hon'ble Supreme Court of India in the case of State of Punjab and Ors. v. Ram Lubhaya Bagga 29. No State of any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizen including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India.
25...Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. So far as questioning the validity of Government policy is concerned in our view it is not normally within the domain of any Court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional statutory or any other provision of law....
11. The respondents have averred that the reimbursement of medical expenses in the case of the applicant has been made as per ceiling rates of CGHS and this has been found to be in order as per rules, keeping in view the position explained above. The package rate for bypass surgery was Rs. 89,200/- for general ward and reimbursement for follow-up treatment was done at CGHS rates.
12. It has been further submitted that permission for treatment in recognized hospital is granted on the basis of advice of Government Specialist at a recognized Hospital of the choice of the beneficiary and patient is not referred to any particular hospital by CGHS.Therefore, it is incorrect to say that CMO In-charge had referred the applicant to Batra Hospital, as permission was granted to beneficiary as per his choice.
13. It has been further stated that prior to 7.9.2001, there was no agreement with the private hospitals, recognized under CGHS, that they shall charge only CGHS rates. Ministry of Health and Family Welfare fixed rates reimbursable for treatment taken in these hospitals and, as per O.M. dated 11.6.1997, any additional amount charged by the hospital was to be borne by the beneficiary himself/herself.
14. In his rejoinder, the applicant, apart from reiterating and elaborating on various pleas taken by him in the main application, has stated that judgment of the Hon'ble Supreme Court in the case of State of Punjab v. Ram Lubhaya Bagga (supra), referred to by the respondents, has been duly considered by the Hon'ble Delhi High Court in the cases of J. C. Sindhwani v. Union of India and Ors. (supra) and Prithvi Nath Chopra v. Union of India and Ors. (supra) in support of the claim for full reimbursement of his undisputed medical treatment. The Hon'ble Delhi High Court, while allowing the-WP (C) No. 770/2003 of Prithvi Nath Chopra with costs of Rs. 5,000/-, also relied and reproduced the extracts of Paras 27, 28, 29 and 30 of the said judgment of the Hon'ble Supreme Court in the case of State of Punjab A Ors. v. Ram Lubhaya Bagga and Ors.
15. He has further invited attention to the Certificate issued by Dr.
T.S. Mahant, Chief Cardiac Surgeon, dated 27.7.2000 (Annexure A-2). He had certified that: "The applicant needs to undergo Coronary Artery Bypass Surgery at the earliest. The cost of this treatment in our hospital is Rs. 1,25,000/- for CGHS personnel. The cheque/DD should be made in favour of Batra Hospital and Medical Research Centre, New Delhi and should be deposited at the time of admission." This Certificate/Letter dated 27.2.2000 was sent to the respondents for issuance of necessary sanction and Cheque/DD, as required by the said Hospital. They had not raised any objection with regard to the costs to be charged from CGHS personnel, as mentioned in the said letter/certificate. Unfortunately, they issued a Cheque of Rs. 80,190/- dated 24.3.2000 in favour of Batra Hospital, without intimating the reasons of not issuing the Cheque for the amount required by the said Hospital.
16. It has been further stated that the instructions issued in 1996 and 1997 are not applicable in the present case of the applicant, as held by the Hon'ble Delhi High Court in the cases of V.K. Gupta and P.N.Chopra and Ors. (supra). Even the Hon'ble Supreme Court of India, in Para 28 of their judgment in Ram Lubhaya Bagga's case (supra), has held, as follows: 28. The new policy does not leave this fixation to the sweet will of the Director but it is to be done by a Committee of technical experts.
The rate for a particular treatment would be included in the advise issued by the District/State Medical Board. A Committee of technical experts shall be constituted by the Director, Health and Family Welfare, Punjab to finalise the roles of various treatment packages.
17. During the course of oral arguments, Mr. Sant Lal, learned Counsel for the applicant, took me through the list of dates and events and the order of this Tribunal in C.P. No. 435/2005 in O.A. No. 918/2005, decided on 19.1.2006. He also drew specific attention to the judgment of the Hon'ble High Court of Delhi in the case of J.C. Sindhwani v.Union of India and Anr. (supra), wherein it was held that full reimbursement for undisputed medical treatment has to be given. This was done even after considering the decision in the case of Ram Lubhaya Bagga (supra), cited by the respondents.
18. Mr. Hari Nath Ram, learned Counsel for the respondents stated that the applicant was not referred to the Batra Hospital by CGHS. The payment to the Batra Hospital for the treatment of the applicant was made as per the extant orders on the subject. He further pointed out that the rates fixed in 1996 were revalidated in 1999 till further orders.
19. I have heard the learned Counsel for the parties and perused the material on record, as well as various citations mentioned by both the Counsels.
20. In my opinion, the core issues to be decided in the present case are the sacrosanctity of the package deal rates approved by the Government, the reimbursibility of the medical charges in the context of the applicant having approached the private hospital without being 'referred' to it by a specialist Government doctor and the ratio of the judgment of the Hon'ble Supreme Court in the case of State of Punjab and Ors. v. Ram Lubhaya Bagga 21. First, the facts. Admittedly the applicant is a retired Central Government employee in possession of a valid Whole Life CGHS Token Card. Batra Hospital, where he undertook the treatment, is a recognized private hospital for the treatment of CGHS beneficiaries (Annexure R-1). Admittedly again, the applicant was sent to Batra Hospital by CMO, CGHS Dispensary, on the request of the applicant for being provided with necessary treatment facilities and accommodation in accordance with his status and was treated accordingly. Admittedly, the respondents sent a cheque for Rs. 80,190/- to Batra Hospital in the context of the advice of the said Hospital that the cost of treatment was Rs. 1,25,000/- for CGHS personnel (Annexure A-II). What is standing in the way of full reimbursement of the medical expenses are the package deal rates fixed vide O.M. dated 18.9.1996 and re-validated as such vide O.M. dated 13.7.1999. Admittedly an agreement has been entered into with private hospitals on 7.9.2001 to charge only CGHS approved rates from CGHS beneficiaries. The respondents have also, in effect, stated that the relief provided to the applicants in the cases cited by the applicant herein was applicable to them in persona.
22. In a catena of cases various Courts have laid down the following general principles for reimbursement of medical expenses incurred by Government servants, who undergo treatment in private hospitals: (i) It is now settled law that right to health is integral to right to life.
(ii) A welfare State like India is bound to provide the basic requirements of its citizens. Health care facility is an integral part of the same and the CGHS has been established for the benefit of the Central Government employees. Even retired Government employees should not be left out of the purview of medical care.
(iii) If the Government servant has suffered an ailment which requires treatment at a specialized approved hospital and, on reference, the Government servant has undergone such tixaunent therein, it is 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.
(iv) The mismatch between the rates charged by the approved hospitals and the rates approved by the Government works always to the disadvantage of the patient. What was fair and reasonable in 1996 or 1999, when the rates apparently had some nexus with the then (current) rates has ceased to be so.
(v) The cost of medical treatment has been rising over a period of time and Government cannot deny the actual reimbursement from a Hospital recognized by it for treatment on the basis of applying the rates as per the orders issued previously. It would, therefore, be appropriate to update the approved rates on an annual or, at least, biennial basis.
(vi) It is not the duty of the citizen to ensure that recognized hospitals do not charge in excess of the package rates.
(vii) The Government was obliged to grant ex post facto sanction in case an employee requires a speciality treatment and there is a nature of emergency involved. In such a situation, treatment in a non-recognized hospital and non-observahce of prescribed procedure have to be condoned.State of Punjab and Ors. v. Mohinder Singh Chawla J.C. Sindhwani v. Union of India and Anr. 2005(124) DLT 513; J.K. Saxena v. Govt. of NCT of Delhi W.P. (C) No. 5015/2003, decided on 16.12.2004; Prithvi Nath Chopra v. Union of India and Anr. 2004(111) DLT 190; V.K. Gupta v. Union of India and Anr. ;Narendra Pal Singh v. Union of India and Ors.L.P. Sharma v. Union of India and Ors. 2004(2) ATJ 492; Sh. S.R. Jha v. Union of India and Ors. 2003(2) ATJ 168; and Shri Bhagwan Singh v. Union of India and Ors. 2002(1) ATJ 226.]State of Punjab and Ors. v. Ram Lubhaya Bagga etc. (supra), cited by the respondents, it has been considered in several of the judgments cited above. Thus, in the case of M.G. Mahindru v. Union of India and Anr.
(supra) the following ruling was given: There cannot be any dispute with regard to the ratio laid down by the Supreme Court in State of Punjab v. Ram Lubhaya Bagga's case (supra). In that case the petitioner challenged the policy of the Government with regard to fixation of allowances. In that case no recommendation was made by the CGHS for getting the treatment from a private hospital. As far as the case in hand is concerned, it is the Government Hospital, namely, RML Hospital which has recommended the case of the petitioner for a specialized treatment by a speciality hospital, which is on the approved list of CGHS. When the respondents themselves have recommended the case of the petitioner for getting treatment at a speciality hospital, to deny the benefit of giving full reimbursement would be contrary to the grant of medical facilities to a retired Government servant, if he cannot actually avail of the same. If the Government Hospital did not have the facility for giving treatment like the one which was required to be given to the petitioner, then it was an obligation on the part of the respondents to have reimbursed the total amount paid to the said hospital. Following the ratio laid down in the State of Punjab and Ors. v. Mohinder Singh Chawla's case (supra), I direct the respondents to reimburse the amount of Rs. 80,620/- to the petitioner within a period of four weeks.
24. Similarly, in the case of J.C. Sindhwani v. Union of India and Anr.
(supra), it was held: 8. The issue of whether the Government is bound by the "package rates" and cannot, disbursement amounts in excess of such "approved" rates has arisen for consideration; in V.K. Gupta v. Union of India, M.G. Mahindru v. Union of India, 92 (2001) DLT 59; and P.N. Chopra's case (supra) the Court expressly rejected similar defences and directed full reimbursement. In P.N. Chopra's case, the decision in Ram Lubhaya Bagga's case (supra) was considered; nevertheless a direction to make full payment was issued. I am in complete agreement with the reasoning in those cases.
25. Taking the totality of facts and circumstances into consideration and also taking into account the ratio of various judgments aforementioned, I arrive at the following findings on the core issues identified earlier: (i) The package rates, not having been revised periodically, are not sacrosanct and cannot be the sole criteria for denying full reimbursement to the applicant, who admittedly underwent the treatment in a private hospital, approved by the Central Government.
(ii) Insofar as the applicant went to the approved hospital on a reference obtained by him from the CMO of the CGHS, full reimbursement of medical expenses cannot be denied to him on the ground that he was not formally "referred' to Batra Hospital by a specialist Government doctor.
(iii) The ratio of the judgment of the Hon'ble Supreme Court in the case of State of Punjab and Ors. v. Ram Lubhaya Bagga (supra), as pointed out in the judgments of the Hon'ble High Court of Delhi in the cases of M.G. Mahindru v. Union of India and Anr. (supra) and J. C. Sindhwani v. Union of India and Anr. (supra), is not against full reimbursement of medial expenses incurred in a private hospital approved by the Government.
26. In the result, the O.A. is allowed. I direct the respondents to reimburse Rs. 49,290/-, or whatever is the unpaid balance amount, td the applicant within a period of six weeks from the date of receipt of a certified copy of this order.
27. Before parting with the case, I would like to mention that Government, as a model employer, should not play hide and seek in its dealings with the employees. If a relief has been fairly and squarely conceded, either on account of change of policy or change of mind of the executive authorities or on account of the ruling of a Court, and which has achieved finality, it should be freely and voluntarily extended to all similarly placed persons, rather than doing it out on case by case basis and thereby making all potential and prospective beneficiaries to rush to the Courts. This is the ratio of several judgments of the Hon'ble Supreme Court as well as orders of this Tribunal (State of Karnataka and Ors. v. C Lahlitha ; Smt. Prem Devi and Anr. v. Delhi Administration and Ors. 1989 Supp. (2) SCC 330; Inder Pal Yadav and Ors. v. Union of India and Ors.
; Naval Singh v. Union of India and Ors. in O.A. No.2223/2005, decided on 5.7.2006; and in R.B. Bhatt, AFO and Ors. v.Union of India and Anr. O.A. No.