J.N. Srivastava v. Union of India Ministry of Health & Family Welfare Nirvan Bhawan New Delhi.

The applicant, a retired income tax officer, is aggrieved by the rejection of the medical claim preferred by him in connection with the medical treatment of his spouse.

2. Briefly stated, the applicant retired in 1993 and his spouse had to undergo medical treatment initially at Meerut, followed by treatment at Agra and later on at the Rajiv Gandhi Cancer Institute at Delhi. The treatment took place in 1999 and that the applicant preferred the medical bills for a sum of Rs.88,071/- sometime in 2000. This was considered by the respondents as late as in Jun 2009 vide Annexure A-6 who had rejected the claim of the applicant on the ground that provision does not exist for medical reimbursement under the CS(MA) Rules, 1944 in respect of retired Central government pensioners. According to the applicant his two applications dated 19-05-2009 and 11-06-2009 have not been disposed of so far. The applicant has therefore filed this O.A. seeking the following reliefs:- i. To diret the respondents to provide the reimbursement of Expenditure on medical treatment of the applicant for the treatment of his wife under the Scheme of C.G.H.S inpursuance of Govt. Order dated 29 October, 1992.

ii. To direct the respondent No. 2 to decide the applications dated 19.05.2009 and 11.06.2009 made by the applicant for provide the Reimbursement of Expenditure on medical treatment of his wife, at an early date.

iii. To provide any other relief to the applicant which this Honble Tribunal deems fit and proper in the circumstances of the case.

iv. Award cost to the petitioner.

3. Respondents have contested the OA. They have contended that on the day of retirement the applicant was not a CGHS beneficiary and the Assistant Director (CGHS) rejected his claim as the treatment does not fall under the category of emergency. Further the CS(MA) Rules, 1944 are applicable only to serving employees and not the retired employees or their families. The respondents have further contended that the Central Administrative Tribunal, Ahmedabad Bench as well as the High Court of Gujarat had dealt with such matters and allowed the claims but when these have been taken up before the Hon'ble Apex Court, the Apex Court, by its order dated 02-05-2005 has been pleased to order contempt proceedings initiated shall remain in abeyance until further orders. It has also been stated that the Central Government is processing Health Insurance Scheme also which will benefit Central Government Pensioners residing in areas not covered by the CGHS.

4. Counsel for the applicant explained the facts of the case and submitted that he relies upon the decision of the Apex Court in the case of State of Punjab versus Mohinder Singh Chawla (JT 1997) 1 SC 416 and Ministry of Health and Family Welfare O.M. dated 29-10-1992 Vide Annexue A-7.

5. Counsel to the respondent submitted that the case of the applicant is not covered under the existing rules.

6. Arguments were heard and documents perused. Insofar as the judgment relied upon by the applicants is concerned, the same may not be of much of use to the applicant in view of the fact that the case was decided on the basis of the medical rules prevalent in the State of Haryana, applicable to the State government employees. Insofar as Annexure A-7 order the Ministry of health and family welfare, the same clearly stipulates that it applies to serving government employees. As such the applicant cannot get any support from the said OM.

7. The problems faced by the applicant had once been considered by the Apex Court in the case of K.P. Singh vs Union of India (2001) 10 SCC 167 and the Apex Court has held as under:  1. This writ petition by a retired government servant impugns, to put it in general terms, the manner in which the Central Government Health Scheme (CGHS) treats ailing pensioners.

2. The first specific challenge is aimed at an office memorandum dated 11-6-1997 on the subject of simplification of the procedure for referral to recognised hospitals. The two clauses which are assailed read thus: (iii) In case of a medical emergency, the details of which shall be recorded in writing by the CMO in charge of the CGHS dispensary, the CMO concerned may directly (i.e. even before specialist's advice has been obtained) refer the CGHS beneficiary to a private recognised hospital for further management/treatment.

(iv) The expenditure to be reimbursed by the parent department/office/CGHS Directorate, as the case may be, would be restricted to the package deal rates/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.

3. Our attention was drawn by the learned counsel for the Union of India to the affidavit-in-reply to the writ petition and to the circulars annexed thereto. The affidavit states, based on an OM dated 11-6-1997, that in the case of an emergency, the Chief Medical Officer in charge of a CGHS dispensary may directly refer a beneficiary of the Scheme to a private recognised hospital for further treatment. Attention is also drawn to an office memorandum dated 7-4-1999 wherein, in clauses (2), (5) and (6), much relief has been given. The same circular provides, in the part thereof, relating to ex post facto approvals, for emergency situations. We think that these provisions take reasonably adequate care of what has been pointed out on behalf of the petitioner.

4. The next charge is directed at an office memorandum dated 16-8-1994 that deals with the reimbursement to beneficiaries of the Scheme of claims relating to medicines that fall outside the CGHS formulary. Insofar as the beneficiaries of the Scheme other than retired government servants and freedom fighters are concerned, they can procure such medicines directly from a registered chemist and claim reimbursement, on the strength of a filled-in pro forma, from the service head of their respective ministry, department or office. Insofar as retired beneficiaries under the Scheme are concerned, however, medicines that fall outside the CGHS formulary have to be got indented by the CGHS dispensary concerned. The contention on behalf of the petitioner is that this procedure of indentation takes much time so that the medicine cannot be taken in good time. That this is so, is admitted in the affidavit-in-reply, but it is stated therein that in the case of an emergency, such medicines can be obtained from the local chemist concerned immediately on the basis of an authority slip from the CMO in charge of the CGHS dispensary. This is stated in the affidavit, but it does not seem to be notified on any circular or office memorandum. We direct that this should immediately be done.

5. The third charge is made in regard to a modified Form 97 applicable to applications for reimbursement. The complaint is that such modified forms are not available everywhere. The reply in the counter is that medical reimbursement claims are received and payments are made even in the absence of these modified forms and based on the old forms. We see no reason to doubt the statement.

6. The last grievance, and it is of some note, is that a beneficiary of the Scheme will receive reimbursement only at the rate approved by the CGHS, regardless of the fact that in his particular town or city there are only private hospitals and no government hospital; there is, therefore, no option for him but to enter a private hospital for such treatment. It is also submitted that the approved rates are not updated by the CGHS from time to time so that what the beneficiary receives by way of reimbursement can be substantially less than the cost that has actually been incurred upon his hospitalisation. While there is, we think, merit in the submission, it is not for us to dictate what should be done. We direct that the Union of India shall immediately consider this aspect and give appropriate directions thereon. It would clearly be appropriate for it to update its approved rates on an annual or, at least, biennial basis.

8. It is not exactly known whether the government has duly considered the above suggestion of the Apex Court. If so, any benefit that may accrue to the applicant by way of implementation of the same may be considered by the respondents. Further, as per the respondents, certain other cases are also pending with the Apex Court. If a decision is rendered by the Apex Court in respect of those cases and if the applicant is similarly situated, in all expectation the decision of the Apex Court would be pressed into service in the case of the applicant as well.

9. In view of the above, this O.A. is disposed of with a direction to the respondents to await the decision of the Apex Court in the case of SLP 10206 of 2004, 10207 of 2004, 22812 of 2004, 4193-94 of 2005 SLP 3714 of 2005 SLP ) 5921 of 2005 and SLP 8539 of 2005 and if the same goes in favour of the retired government servants, the same be extended to the applicant as well. The medical claim may thus, be kept alive to be decided after the outcome of the pending cases before the Apex Court. No costs. Member (J) /pc/