Dr. Irengbam Ibohanbi Singh vs State Of Manipur

[1] Heard Ms. Th. Babita, learned Advocate appearing for the petitioner and Mr. A. Vashum, learned GA for the respondents.

[2] By the instant writ petition, the petitioner has prayed for issuing a writ of mandamus or any other appropriate writ to direct the respondents to

consider his case and accord ex-post facto approval of the State Medical Board in terms of the written assurance given by the Director of Health

Services, Manipur/ Chairman, State Medical Board on 02-07-2019.

[3.1] According to the petitioner, he was elected as a member of the Manipur Legislative Assembly from 25-Oinam Assembly Constituency on 27-02-

2007 for the 1st term and on 06-03-2012 for the 2nd term. As per the provisions of the Salaries and Allowances of the Members of the Legislative

Assembly (Manipur) Act, 1972, as amended from time to time including Section 10 thereof, a member of the Manipur Legislative Assembly is entitled

to medical treatment including the treatment outside the State. During the tenure of his membership of the Manipur Legislative Assembly and on the

recommendation of the State Medical Board vide its Memorandum dated 14-11-2014 and 27-03-2015, he went outside for treatment at Apollo

Hospital, Chennai for the ailment “SYSTEMIC HYPERTENSION SYMTOMATIC SICK SINUS SYNDROME MOBITZ TYPE 1AV

BLOCKâ€. On 06-10-2014, the petitioner after due and necessary treatment at Apollo Hospital, Chennai, made his claims which was sanctioned vide

order dated 15-12-2014 and 18-05-2015 by the Manipur Legislative Assembly and the necessary payment thereof was made to him accordingly.

[3.2] Thereafter, the petitioner used to attend C.K. Birla Heart Institute, Kolkata, West Bengal at regular intervals of every 6(six) months. When the

petitioner attended C.K. Birla Heart Institute on 29- 06-2019, the consultant Doctor advised him to do final check-up at Apollo Hospital, Chennai

where the petitioner had been treated with Pacemaker Implantation on 06-10-2014. The petitioner returned home on 02-07-2019 and he personally

approached the Director of Health Services, Manipur who is the Chairman, State Medical Board for placing his case before the Board. He submitted

an application on the same day ie.,02-07-2019 directly to the Director of Health Services, Manipur/ Chairman, State Medical Board who gave his

instruction to place it before the next Board for grant of ex-post facto approval. On 04-07-2019, the petitioner left Imphal by INDIGO flight for

Chennai along with two attendants and reached the Apollo Hospital on 07-07- 2019 and attended the Hospital on 08-07-2019 and underwent treatment

for the following:

“SYSTEMETIC HYPERTENSION SYMPTOMATIC SICK SINUS SYNDROM MOBITZ TYPE 1 AV BLOCK PROCEDURE:

PERMANENT PACEMAKER IMPLANTATION (06.10.2014) â€" MEDRONIC DDDR MRI COMPATIBLE ADVISA

PACEMAKER PALN: MEDICAL MANAGEMENT.â€​

[3.3] The petitioner returned home on 14-07-2019 and submitted all the relevant documents to the Secretary, Manipur Legislative Assembly for

obtaining ex-post facto approval from the State Medical Board, Manipur so that the necessary expenditure could be reimbursed to him. His application

was forwarded to the State Medical Board vide a letter dated 22-07-2019 of the Manipur Legislative Assembly. On 26- 07-2019, when the petitioner

enquired about the status of his application, he was informed that the State Medical Board was not in a position to accord ex-post facto approval as

the Apollo Hospital, Chennai was not in the list of private hospitals recognised/ empanelled as referral hospital/ centres for the purpose of medical

treatment. However, the office of the Director of Health Services, Manipur refused to issue an objection certificate to the petitioner or return the

documents to the office of the Manipur Legislative Assembly.

[3.4] Being aggrieved by the refusal of the State Medical Board for grant of ex-post facto approval, the instant writ petition has been filed by him on

the inter-alia grounds that the petitioner had already undergone treatment at Apollo Hospital, Chennai, for which the expenditure incurred by him had

been reimbursed by the Manipur Legislative Assembly. The medical treatment of the petitioner on 08-07- 2019 was at Apollo Hospital, Chennai which

is still in the list of private hospitals in India recognised under the Central Services (Medical Attendance) Rules, 1944 as extended to the State of

Manipur. As per the provisions of the Salaries and Allowances of the Members of the Legislative Assembly (Manipur) Act, 1972, a member of the

Manipur Legislative Assembly is entitled to medical treatment including the treatment outside the State. The petitioner underwent treatment at Apollo

Hospital, Chennai on the assurance given by the Director that ex-post facto approval would be granted to him. The Chairman, State Medical Board

accorded ex-post facto approval vide Memo dated 08- 07-2018 for treatment at Mother’s Care Children Hospital and Research Centre, Sagolbad

Moirang Lerak which is not in the list of private hospital in Manipur as referral hospital, for treatment of the State employees. The refusal of granting

ex-post facto approval to the petitioner is highly discriminatory being violative of Article 14 of the Constitution of India.

[4] The stand of the State, as usual, as indicated in their affidavit is that the petitioner is not entitled to the reliefs prayed for by him in the writ petition,

as the hospital where he was treated, is not in the list of empanelled hospital under the C.S (MA) Rules and recognised by the State Government. The

treatment in a private hospital and non- recognised is impermissible. The ex-member of the Manipur Legislative Assembly and his family are permitted

for medical treatment outside the State subject to the conditions mentioned in the Medical Attendance Rules which have not been followed by the

petitioner. The allegation that the ex-post facto approval would be provided to the petitioner, has been denied stating that the assurance given by the

Director was that his case would be considered according to law. The ex-post facto approval is granted only when the hospital where the claimant is

treated, is in the list of the empanelled hospital. The State Medical Board, after minutely examining the relevant documents submitted by the petitioner,

refused to grant its approval. If the High Court allows or otherwise grants the relief prayed for by the petitioner, the purpose of constituting the State

Medical Board shall be frustrated and there will be no meaning of constituting the Board. The question of discrimination does not arise and the instant

writ petition deserves to be dismissed by this Court.

[5] The issue involved herein is covered by the decision rendered by the Hon’ble Supreme Court in Sunjit Singh Vs. State of Punjab & ors, (1996)

2 SCC 336 and judgment and order dated 16-06- 2015 passed by this Court in Soram Nabakumar Singh Vs. State of Manipur, WP(C) No.1036 of

2014 and therefore, the instant writ petition is liable to be allowed in terms thereof. On the other hand, the learned Government Advocate has

reiterated the stand taken by the respondents in their affidavit.

[6] In Soram Nabakumar (supra), the petitioner therein suffered from diarrhoea and after having consulted a gastroenterologist and as per his advice,

a Colon Endoscopy was done, from which his prostate gland was found enlarged and after seeing the said report of the C.T. Scan, he was advised to

go to Rajiv Gandhi Cancer Institute, Delhi for treatment. In view of the urgent treatment being required, the petitioner went to Delhi and was admitted

at Rajiv Gandhi Cancer Institute and Research Centre. After having performed various clinical tests and operated upon, the petitioner was discharged

from the hospital for which he spent a total sum of Rs. 4,40,957.69/- (Rupees four lakhs forty thousand nine hundred fifty seven and sixty nine paise)

only and claimed for its reimburshment. This Court while allowing the writ petition, held as under:

“[7] Admittedly, there is no dispute as regards the facts of the case and the only stand taken by the State Government is that medical

reimbursement as claimed by the petitioner cannot be permitted in law. Rule 6 of the C.C.S. (M.A) Rules, 1944 (1)(i) provides that a

Government servant shall be entitled to, free of charge, treatment in a Government hospital at or near the place where he falls ill. An

exception has been curved out in sub-rule (1)(ii) which provides that a Government servant shall be entitled to, free of charge, treatment in

a private hospital subject to the condition mentioned therein. Rule 6(2) provides for reimbursement of medical expenses. It may be noted that

the said rules were made keeping in mind the circumstances prevailing at that point of time and since there had been changes in the

circumstances thereafter, the Government of India had to issue instructions from time to time including the one mentioned above and relied

upon by the learned Government Advocate. But one thing is clear that medical reimbursement for expenses towards treatment in private

hospital is permissible, subject to the conditions mentioned therein, in accordance with the policy decision of the Government concerned

and it is not that it is impermissible at all.

[8] There has been further changes recently in the circumstances with the development of science and technology in the field of Medicine,

as a result, a private hospital differs from the other in respect of medical facilities to be provided therein. When one is not sure which

hospital would be better for the ailment that he suffers, it must be left with the employee concerned to choose a hospital of his choice so as

to avoid repentance in future. The Hon’ble Supreme Court in the case of Surjit Singh case (supra) has explained what is self-

preservation and what can be done by the individual concerned for it. As per the observations of the Hon’ble Supreme Court, self-

preservation of one’s life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India,

fundamental in nature, sacred, precious and inviolable and for his self- preservation, one has the right to take steps accordingly. One

needn’t stand in queue before the Medical Board, the manning and assembling of which makes its meetings difficult to happen and

needn’t stand in queue in Government hospital and could go elsewhere to an alternative hospital as per policy. As has been stated

hereinabove, the Hon’ble Gauhati High Court had delivered a judgment in the case of Gouri Sen Gupta Vs. State of Assam, reported in

1999 (3) GLT 601 (supra), the facts of which are very much identical to that of the present case.â€​

[7] The facts of the Soram Nabakumar (supra) are identical to that of the present case and in other words, the stand taken by the State Government

in Soram Nabakumar (supra) is similar to the one taken in the present case. However, this Court had rejected the contention of the State Government

considering the fact that the petitioner therein had to take immediate steps the moment he came to know about the seriousness of his illness and to

take a decision keeping in mind the circumstances namely the advice of the consulting doctor advising him to go to Rajiv Gandhi Cancer Institute,

Delhi for treatment and non-availability of Surgical Oncologist or Uro- oncologist in Manipur and the urgent nature of his illness and it is no doubt true

that the petitioner ought to have gone to the private hospital recognised/ approved by the State Government so as to avoid such problem of

reimbursement. But the fact remains that since the petitioner therein had the right to self- preservation as laid down by the Hon’ble Supreme

Court, it is quite natural that he opted for the private hospital which his consulting doctor had suggested, with the idea that he would get better attention

there with the reference of his consulting doctor. Further, this Court was of the view that it was covered by the judgment a n d o r d e r of the

Hon’ble Gauhati High Court rendered in the case of Gouri Sen Gupta Vs. State of Assam, reported in 1999 (3) GLT 601 (supra) and that the writ

petition is liable to succeed. Similarly, the issue involved herein is covered by this Court’s judgment and order as stated hereinabove. One of the

points that the learned Government Advocate has emphasided, is that the State Medical Board ought to follow the rules and if this Court allows the

writ petition granting relief to the petitioner, the purpose of constituting such a Board will stand defeated. In this regard, it may be noted that the laws

are enacted by the State Legislature/ the Parliament and sometimes, certain rules are made by the State Government/ Central Government in exercise

of power conferred upon them either by the concerned Act or the Constitution of India. It is the duty and function of the Court to interpret them when

they are brought to its notice. Since the law relating to medical reimbursement, has been interpreted by the Hon’ble Supreme Court or the High

Court whose order has attained finality, the State Government shall not stick to the rules and the rules shall be amended suitably in tune with the

Court’s interpretation in order to avoid such litigation in future.

[8] In view of the above and for the reasons stated hereinabove, the instant writ petition is allowed with direction that the respondents and in

particular, the respondent No.2, shall accord ex-post facto approval for the purpose of the reimbursement of the medical expenses incurred by the

petitioner towards his treatment to be calculated based on the rates approved by the State Government in respect of the items listed therein or on the

rates charged by a private hospital recognized/ approved by the State Government within a period of three months from the date of receipt of a copy

of this judgment and order. There shall be no order as to costs.