Mukesh Tiwari vs State of M.P. and Others

Sanjay Yadav, J.

Heard.

Being aggrieved by partial reimbursement of Medical expenses meted out by the petitioner for Coronary Artery By-Pass Surgery underwent at Escorts Hearts Hospital, New Delhi, present petition is filed seeking direction to respondents to make good the difference of amount paid and the amount reimbursed. The petitioner an employee of School Education Department, Government of M.P. was detected of Coronary heart disease in May 2004. He was treated at Government MGM College, Indore, whereupon he was referred to Escorts Heart Hospital, New Delhi for Coronary Angiography and further treatment. The petitioner on the basis of referral certificate applied for permission from the Director, Public Instruction for treatment at Escorts Heart Hospital, New Delhi. The permission was duly accorded. Petitioner after preliminary treatment underwent surgery and was relieved on 8.6.2004. Petitioner had to incur Rs. 2,19,473/- for the entire treatment. Thereafter, he applied for reimbursement of the said amount. The respondents instead of entire amount of Rs. 2,19,473/-reimbursed only Rs. 1,15,000/- on the anvil that it was the maximum amount which tis reimbursable as per circular issued by the Medical Education Department No. F 18-58/2000/55/vish/1 dated 15/20-3-2001 for an open heart surgery.

The facts being not controverted, nor the entitlement of the petitioner for medical reimbursement having undergone surgery at Escorts Heart Hospital, New Delhi, the question which arises for consideration is whether the petitioner is entitled for the reimbursement of entire amount spend to meet out the expenses of surgery or are the respondents justified in limiting the same as per circular dated 15/20-3-2001.

Medical attendance and treatment of Government servant is regulated by the Rules framed by Governor in exercise of powers conferred by proviso to Article 309 of the Constitution of India, viz., Madhya Pradesh Civil Services (Medical Attendance) Rules 1958 (hereinafter to be referred as Rules of 1958)''. Since it is not disputed, that the petitioner underwent treatment in the Hospital as per sanction by the Competent Authority. It is Rule 4 which is relevant in the context as to the entitlement of Government servant of medical reimbursement. Rule 4 stipulates-

4(1)- A Government servant shall be entitled to treatment in a hospital free of charge. If any amount is paid by a Government servant on account of such treatment accommodation in hospital, diet or on any other account it shall be reimbursed to him in the manner and to the extent provided in these Rules.

(2)- The Medical Officer- in-charge of the Hospital may place the patients in any ward he consider appropriate.

The Rule as apparent entitles the Government Servant for the reimbursement of any amount paid by him on account of such treatment subject to the extent provided in the Rules of 1958. Rule 6 stipulates that a Government servant shall pay in the first instance bills, if any, preferred by the hospital authorities on account of medical attendance, treatment, room rent or diet or on any other account and may, thereafter, prefer claim for reimbursement in accordance with the Rules of 1958. Furthermore, Rule 7 makes a provision regarding expenditure incurred or purchase of drugs prescribed by the authorized attendant in full. Provisions appended with Rule 7 stipulates that-

(1) If a Government servant submits medical reimbursement bills in respect of treatment of himself or any member of his family as an out-door patient exceeding Rs. 250/-(Rupees two hundred fifty) per month for four times in a year or continuously for three months, the Controlling Authority shall seek second opinion of the Chief Medical And Health Officer and only on receipt of a favourable recommendation, shall pass the medical reimbursement bill. In case of treatment by any Indian System of Medicines or Homeopathy second opinion of the Divisional Officer Ayurveda or District Ayurveda, Officer in-charge as the case may be, shall be, obtained instead of the Chief Medical and Health Officer.

(2) If, in a year, bills for medical reimbursement exceeding Rs. 3000/- (rupees three thousand) are received from a Government servant the controlling authority shall get, all such bills exceeding the said limit examined by the Medical Board consisting of the Divisional Joint Director of Health Services, Chief Medical Officer and Health Officer, Specialist of the Disease concerned Divisional Officer Ayurveda or District Ayurveda Officer incharge of the District, as the case may be and such bills shall be passed by the controlling authority only on the recommendations of the Board.

(3) If the Bills for medical reimbursement presented by a Government servent in a year exceed Rs. 5,000/- (rupees five thousand) then all such bills exceeding the above said limit shall be got scrutinized by a Board consisting of the Director Medical Services, Director of Medical Education, Director of Indian Systems of Medicine and Homeopathy and the controlling authority shall pass such bills in accordance with the recommendation of the said Board only.

These proviso however, are not applicable in respect of reimbursement bills relating to: (a) In-door patients; and (b) Patients suffering from such disease in respect of which the Chief Medical and Health Officer concerned has issued a certificate in the prescribed proforma to the effect that the treatment for the disease is required or likely to continue for a prolonged period.

Be that as it may. Except what is provided under Rule 7, no capping in respect of the reimbursement of expenses for treatment availed by a Government Servant in the hospital has been shown to be in the Rules. Except that by way of instructions circulated vide F 18-58/2000/55/vishi/1 dated 15/20-3-2001 by the Medical Education Department, providing the capping of medical reimbursement in case of Angiography of Rs. 10,500/-, for Open Heart Surgery Rs. 1,15,000/- and for Kidney transplant Rs. 1,92,000/-. Clause 2 of said instruction stipulates that expenses above the aforesaid amount'' shall be borne by the Government servant.

The question is whether when Rules framed under Article 309 of the Constitution of India does not provide for a capping whether the operation of Rule 4 can be circumvented by way of executive instructions.

Trite it is that Rule made under the proviso of Article 309 of the Constitution of India are legislative in character [please see Raj Kumar Vs. Union of India (UOI) and Others, and B.S. Yadav v. State of Haryana: 1980 (Sup) SCC 524].

Equally settled it is that the statutory Rules cannot be supplanted by the executive instruction. In this context reference can be had of the decision in T.N. Housing Board Vs. N. Balasubramaniun and Others, ; wherein it was observed by their Lordships in-

It is one thing to say that there exists no provision in the Regulations which would attract the rules specified, in Regulation 28(a) or the instructions and rulings thereunder, but it is another thing to say that the instructions if implemented cannot be given effect to having regard to the consequences provided for in the extent Regulations, still the same would be applicable. We have noticed hereinbefore that for Junior Engineers and Draftsmen eligibility criteria have been laid down. It is not in dispute that the said eligibility criteria are mandatory in nature and the validity thereof had not been questioned. If a Draftsman is to be promoted to the post of Assistant Executive Engineer, he must complete 15 years of service in the said capacity, whereas the Junior Engineer may have to complete only 10 years in the said post. Once the eligibility criteria are considered to be a pre-requisite for giving effect to the statutory Regulations, the purported executive instructions would not be applicable. Once it is held that relying on the basis of the executive instructions in terms of Regulation 28(a), the Draftsmen who have been getting higher salary are given preference over the diploma-holder junior Engineers, the eligibility criteria contained in the statutory Regulations would become otiose; the logical corollary thereof would be that the executive instructions would prevail over the statutory Regulations. Such a consequence would lead to an absurdity and in that view of the matter it must be held that the executive instructions cannot be given effect to.

(Emphasis supplied)

Therefore in the considered opinion of this court executive instruction dated 15/20-3-2001 which put a capping on a maximum amount which has to be disbursed towards medical reimbursement was contrary to Rule 4(1) and (2) of the Rules of 1958 will not be applicable as the same leads to supplanting of Rule 4 of Rules 1958, if followed the operation of rules is restricted.

In view of above, petition is allowed. Respondents are directed to disburse the entire amount towards medical reimbursement as was claimed by the petitioner who underwent Coronary Artery By-Pass Surgery after adjusting the amount already paid. Let the same be paid within a period of three months from the date of communication of this order.

The petition is allowed to the extent above.