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2013 Supreme(J&K) 387
HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
Hasnain Massodi, J.
Mohd. Akram Khan -Appellant
Versus
State Of J&K & Ors. -Resopndent
OWP No. 1724-2011 & CMP No. 2752-2011
Decided On : 22-05-2013
Jehangir Iqbal Ganai , T.H. Khawja, Shuja-ul-Haq.
Headnote:
Medical Reimbursement - Jammu & Kashmir Civil Services (Medical Attendance-cum-Allowance) Rules 1990 - Rule 6, Rule 6-A, Rule 8 - The court discussed the application of the Jammu & Kashmir Civil Services (Medical Attendance-cum-Allowance) Rules 1990, specifically Rule 6, Rule 6-A, and Rule 8, in the context of reimbursement of medical expenses incurred by a government employee on the treatment of his son. The court emphasized that the rules did not permit any upper limit on the reimbursement of expenditure incurred on medical treatment in a private hospital outside the State. The court also highlighted the power of the government to relax the requirements of the rules in cases causing undue hardship, subject to certain exceptions and conditions. The judgment emphasized that the government cannot deny reimbursement of the expenditure incurred by a government employee on medical treatment, duly verified by the competent authority, in accordance with the rules, or allow such reimbursement partly or up to a particular limit, unless there is a change in policy and rules are amended.
Fact of the Case:
The petitioner, a government employee, sought reimbursement of medical expenses incurred on the live donor liver transplantation of his son at a private hospital outside the State. The State Government initially accorded post-facto sanction to the treatment but later imposed a cap on the reimbursement, leading to the petitioner's challenge of the government orders.
Finding of the Court:
The court found that the Jammu & Kashmir Civil Services (Medical Attendance-cum-Allowance) Rules 1990 did not permit any upper limit on the reimbursement of expenditure incurred on medical treatment in a private hospital outside the State. The court also emphasized that the government cannot deny reimbursement of the expenditure incurred by a government employee on medical treatment, duly verified by the competent authority, in accordance with the rules, or allow such reimbursement partly or up to a particular limit, unless there is a change in policy and rules are amended.
Issues: The issues revolved around the application of the Jammu & Kashmir Civil Services (Medical Attendance-cum-Allowance) Rules 1990, specifically Rule 6, Rule 6-A, and Rule 8, in the context of reimbursement of medical expenses incurred by a government employee on the treatment of his son, and the legality of imposing a cap on the reimbursement of medical expenses.
Ratio Decidendi: The court held that the Jammu & Kashmir Civil Services (Medical Attendance-cum-Allowance) Rules 1990 did not permit any upper limit on the reimbursement of expenditure incurred on medical treatment in a private hospital outside the State. The judgment emphasized that the government cannot deny reimbursement of the expenditure incurred by a government employee on medical treatment, duly verified by the competent authority, in accordance with the rules, or allow such reimbursement partly or up to a particular limit, unless there is a change in policy and rules are amended.
Final Decision: The petition was allowed, and the respondents were directed to allow reimbursement of expenditure incurred by the petitioner on medical treatment of his son at the private hospital, Gurgaon, in accordance with the Jammu & Kashmir Civil Services (Medical Attendance-cum-Allowance) Rules 1990.
2. Petitioner, after the "live donor liver transplantation" of his son, approached respondents with the medical reimbursement claim. The State Government vide Govt. Order No. 93-Agri of 2011 dated 17.3.2011 accorded sanction to the reimbursement of medical expenses incurred by the petitioner on the treatment of his son at Medanta Medicity Hospital, Gurgaon in relaxation of Jammu & Kashmir Civil Services (Medical Attendance-cum-Allowance) Rules 1990, subject to the condition laid down in the order.
3. In terms of condition No. I, the reimbursement of charges was to be made for the "admissible Procedure/items at the rates in vogue at the AIIMS, New Delhi". Petitioner aggrieved with the condition No. I, approached the respondents for review of the order dated 17.3.2011. Petitioner's case was that as AIIMS, New Delhi did not have facility for "Live Doner Liver Transplant" and did not conduct such procedures, the reimbursement of medical expenses could not be linked with the "rates in vogue at AIIMS, New Delhi." Respondents realising the error committed in making rates in vogue in AIIMS applicable to the petitioner's case, reviewed the order and passed a fresh order being Government Order No.208-Agri of 2011 dated 21.7.2011. The respondents now linked the reimbursement of Medical expenses with the "rates in vogue at the Institute of Liver & Billiary Sciences, New Delhi, SG, PGI, Lucknow, to the extent of Rs. 12.00 lacs.
4. Petitioner aggrieved that the respondents while making "rates in vogue at Institute of Liver & Billiary Sciences, New Delhi, SG, PGI, Lucknow,," applicable to the reimbursement of medical claim in his favour had unauthorisedly put a cap of Rs. 12.00 lacs on such reimbursement, approached this court with a petition being OWP No.973/2011. Petitioner's case was that he, as evident from the documents submitted to the respondents, had incurred an expenditure of Rs. 38.00 lacs on treatment of his son and was therefore entitled to reimbursement of whole of amount so spent. The petition was disposed of on 24.8.2011 with the following direction:
"this petition is disposed of and respondents are directed to consider the claim of the petitioner in accordance with law for reimbursement of the medical expenses which he has spent on performing Live Liver Transplantation of his son. Respondents to consider the said claim of the petitioner and pass appropriate orders within a period of eight weeks from the date copy of this order is served on them.
5. Petitioner's claim, in compliance of writ court order dated 24.8.2011, was accorded fresh consideration and rejected vide Govt. Order No.352-Agri of 2011 dated 17.11.2011. Petitioner through medium of writ petition on hand calls in question the Govt. Order No.208-Agri of 2011 dated 21.7.2011 as also Govt. Order No.352-Agri of 2011 dated 17.11.2011.
6. Petitioner's case is that in terms of Rule-5, Jammu & Kashmir Civil Services (Medical Attendance-cum-Allowance) Rules 1990, he is entitled to reimbursement of expenditure incurred by him on treatment of his son alongwith travelling expenses from Srinagar to Gurgoan and return to Srinagar. It is reiterated that the petitioner was constrained to
