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       REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION                WRIT PETITION (CIVIL) NO. 694 OF 2015

Shiva Kant Jha  .... Petitioner(s)

Versus

Union of India       .... Respondent(s)

                  J U D G M E N T

R.K. Agrawal, J.

1) The jurisdiction of this Court has been invoked by the

petitioner herein by filing this writ petition against the alleged

unfair  treatment  meted  out  to  several  retired  government

servants in their old age and their state of affairs pertaining to

reimbursement  of  medical  claims  under  the  Central

Government Health Scheme (CGHS).   

2) Brief facts:

(a) The  petitioner  herein  is  a  CGHS  beneficiary  (retired

pensioner) having a CGHS Card valid for whole life for medical

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treatment in Private Ward.  The petitioner herein submitted

two sets of  his Medical  bills  under the Central  Government

Health Scheme (CGHS) for reimbursement on account of his

treatment  done  in  November,  2013  in  the  Fortis  Escorts

Hospital, New Delhi for Rs. 9,86,343/- for his cardiac ailments

involving  the  implant  of  CRT-D device  and  two  sets  of  bill

amounting  to  Rs.  3,98,097/-  for  his  treatment  at  Jaslok

Hospital, Mumbai for cerebral stroke and paralytic attack.   

(b) The  petitioner  herein  submitted  the  first  Bill  on

02.01.2014 and the  second Bill  (two)  on 19.07.2014 to  the

authority  concerned.   The  first  Bill  was  considered  by  the

Technical Standing Committee in May 2014 and the claim was

rejected without  informing him of  the  reasons for  rejection.

The case was again considered by the Standing Committee on

10.07.2014  and  was  rejected  on  the  ground  that  CRT-D

implant  was  not  required.   Aggrieved  of  the  above,  the

petitioner herein filed a representation before  the Secretary,

Ministry of Health & Family Welfare. The said representation

was  again  considered  by  the  Standing  Committee  on

15.01.2015  and  was  rejected  for  the  reason  that  “Prior

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approval for such device implant was not sought”.  Again, in

fourth attempt, the petitioner herein approached the Director

General of the CGHS.  After presenting the memorial to the

Director  General  of  the  CGHS,  the  government  credited  an

amount of Rs. 4,90,000/- in  the petitioner’s Bank Account,

however, he was never heard on any point nor any speaking

order was ever communicated to him.

(c) In  the  second  set  of  Bills  of  the  Jaslok  Hospital,  the

petitioner’s claim was curtailed to the tune of Rs. 94,885/-,

being just one-fourth of the claim and no opportunity of being

heard  was  granted  to  the  petitioner.   Thus,  the  petitioner

herein was denied an amount of Rs. 4,96,343/- from the first

claim and Rs.  3,03,212/- from the second set of  claim.  In

other way, out of the total bills amounting to Rs. 13,84,440/-,

the  petitioner  herein  was  paid  Rs.  5,84,885/-,  meaning

thereby, the petitioner herein was denied Rs. 7,99,555/-.  To

both  the  hospitals,  the  petitioner  had  to  pay  out  of  his

personal resources.    However,  this Court,  vide order dated

01.02.2016, directed the respondent-State to pay a sum of Rs.

3,00,000/- to the petitioner as an interim relief.  

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(d) Aggrieved by the decision of the CGHS in not allowing the

medical bills in full,  the petitioner herein has filed this writ

petition under Article 32 of the Constitution of India claiming

that he being in late 70s of his age, needs money to meet the

needs for his survival.

3) Heard  the  petitioner-in  person  and  Ms.  Binu  Tamta,

learned counsel for the respondent-State.

Rival contentions:

4) The petitioner in person contended before this Court that

over  several  years,  several  retired  government  servants,  in

their  old  age,  have  suffered  and  even  died  due  to  unfair

treatment meted out to them by the CGHS and its controlling

Ministry,  the  Ministry  of  Health  and  Family  Welfare,  in

discharge of their duties.  The petitioner contended that the

impugned  CAG’s  Report  with  regard  to  “Reimbursement  of

Medical  Claims  to  the  Pensioners  under  CGHS”  have  also

expressed the indifference against the pensioners.  He further

contended that every government employee during his life time

or  after  his  retirement  is  entitled  to  get  the  benefit  of  the

medical facilities and no fetters can be placed on his rights.

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The petitioner in-person finally contended that this Court may

exercise  its  jurisdiction  under  Articles  32  and  142  of  the

Constitution so that the fundamental rights of the petitioner

under  Articles  14  and  21  are  protected  and  promoted  by

reimbursing his medical expenditure already incurred by him

under genuine emergency and also to frame some guidelines

for  effective  implementation of  the  claims of  the  pensioners

under the CGHS.

5) Per  contra,  learned  counsel  for  the  respondent  while

refuting the claim of the petitioner submitted that the case of

the  petitioner  has  been  dealt  with  in  accordance  with  the

Circulars and Office Memorandums issued by the Ministry of

Health & Family Welfare from time to time.  Learned counsel

further  submitted  that  the  petitioner  cannot  be  given  any

special  treatment  beyond  the  terms  of  the  circulars  which

would  amount  to  violation  thereof  and  would  lead  to

arbitrariness and discrimination  qua a large number of such

like beneficiaries.

6)  Learned counsel for the respondent further contended

that the government has empanelled several hospitals under

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the CGHS and the petitioner did not approach the empanelled

hospital during medical emergency and he was charged by the

hospital as per their own rates whereas the rates charged for

such facility shall be only at the CGHS rates and that too after

following a proper procedure given in the Circulars issued on

time to time by the concerned Ministry.  Further, the CGHS

has a complete set of rules and guidelines to be followed in

each  case  and if  the  petitioner  is  compensated  beyond the

policy,  it  would  have  large  scale  ramifications.   Learned

counsel  for  the  respondent-State  finally  submitted  that  the

petition is devoid of merits and is liable to be dismissed.

Discussion:-

7) Union of  India-the  respondent  herein,  while  complying

with the order passed by this Court dated 11.04.2016 filed an

affidavit describing the in-house procedure to be followed in

dealing  with  the  claims  under  CGHS,  the  remedy/appeal

available  in  dealing  with the  claims and also  the  nature  of

claims  pending  in  respect  of  card  holders.   The  detailed

procedure  which  is  followed  for  the  purpose  of  medical

reimbursement claims of CGHS beneficiaries have been set out

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in Circular dated 14.11.2011 and further supplemented by the

instructions dated 11.12.2012.  The steps provided in the said

procedure are given hereinbelow:-

Procedure  for  Medical  Reimbursement  Claim (MRC)  in  Central  Government  Health  Scheme (CGHS)

(a) The patient or beneficiary has to approach the in-charge  of  the  wellness  centre  where  he/she  is registered. (b) That after getting all the documents required for MRC from the beneficiary, CMO in-charge submits the  same  online  to  CMO (R&H)  of  the  respective Zonal Office and also send one hard copy through official  dak  to  the  respective  Zonal  Office  CMO (R&H) who process the MRC as per CGHS rates. (c) The  CMO  (R&H)  processes  the  MRC  as  per CGHS  Rates.   If  CGHS  rates  are  not  available, reimbursement is considered at AIIMS rates.  And if AIIMS  rates  are  also  not  available,  the reimbursement is made as per actual rates. (d) The CMO (R&H) gets the approval of Additional Director (AD) of the respective Zonal Office for the MRC.  Then approved amount of MRC is sent as bill to the Pay & Accounts Office (PAO) CGHS Rajinder Nagar. (e) Pay  &  Accounts  Office  credits  the  approved amount  of  MRC  in  the  account  of  beneficiary through Electronic Clearing System (ECS).    

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The procedure of appeal/remedy in CGHS regarding MRC is

given hereunder:-

(a) If the beneficiary is not satisfied with the claim, he  can  request  in  writing  to  the  Competent Authority in CGHS.  The request is then forwarded to  the  higher  authority  by  the  respective  Zonal Office for consideration. (b) If the higher authority considers it necessary to have  the  opinion  of  the  specialist  of  concerned speciality,  a  Special  Technical  Committee  (STC) meeting is held. (c)  On  the  basis  of  the  recommendation  of  the Special  Technical  Committee,  the  approval  of  the competent  authority  is  taken  and  the  approved amount is paid to the beneficiary by PAO.

8) Union of  India,  by filing an affidavit  before this Court,

submitted  that  most  of  the  claims  are  reimbursed  only

through the CGHS sources as per the package rates of CGHS.

However, there are few such cases received occasionally where

reimbursement is done from two sources i.e. from CGHS and

from  the  insurance  companies.   Such  claims  are  first

processed by  insurance companies  and then by  the  CGHS.

The  claim  of  CGHS  is  reimbursed  as  per  the  Office

Memorandum dated 19.02.2009.  It is further submitted that

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no such cases involving reimbursement from two sources is

pending in CGHS.   

9) Further,  the writ petitioner was admitted in emergency

condition with complaint of breathlessness on 11.11.2013 in

Fortis Escorts Health Institute, which was a non-empanelled

hospital at the relevant time.  He underwent angiography on

12.11.2013  which  revealed  diffused  disease  in  left  anterior

descending coronary artery 50-60%.  He had been implanted

the CRT-D device (Combo) as part of cardiac resynchronization

therapy  (CRT)  on  12.11.2013.   The  hospital  charged  an

amount  of  Rs.  11,56,293/-  for  the  said  treatment,  out  of

which, an amount of Rs. 10,70,000/- was for the cost of the

unlisted  cardiac  implant  (CRT-D)  and  an  amount  of  Rs.

3,19,950/- was paid by the Insurance company directly to the

hospital.

10) A  Special  Technical  Committee  meeting  was  held  on

29.04.2014 to consider the case of the petitioner.  However, on

examining  the  same,  the  Committee  did  not  find  any

justification for the implant of CRT-D device of the petitioner.

On a further request by the petitioner, the Special Technical

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Committee again did not find any justification for the implant

of  CRT-D  device  on  10.07.2014.   On  a  request  for

reconsideration by the petitioner, on 15.01.2015, the case of

the petitioner was again reconsidered by the Special Technical

Committee which denied the claim of CRT-D.

11) The total expenditure incurred by the petitioner towards

his medical treatment at Fortis Escorts Heart Hospital, Delhi

was Rs. 9,86,343/- and at Jaslok Hospital, Mumbai was Rs.

3,98,097/-, hence, the total amount claimed by the petitioner

was  Rs.  13,84,440/-.   Though  the  Special  Technical

Committee did not find the implant justified, the competent

authority, keeping in view the emergency nature of the case of

the petitioner, approved the reimbursement of implant as per

AIIMs  rate.   Therefore,  out  of  the  total  amount  i.e.,  Rs.

13,84,440/-,  an amount  of  Rs.  4,90,000/-  was paid  to  the

petitioner on the direction of the authority and Rs. 94,885/-

for  the  treatment  at  Jaslok  Hospital.   As  per  this  Court’s

direction dated 01.02.2016, a sum of Rs. 3,00,000/- has also

been paid by the respondent.   Hence, a sum of Rs. 4,99,555/-

is the claim of the petitioner in the present writ petition.

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12)   With  a  view  to  provide  the  medical  facility  to  the

retired/serving  CGHS  beneficiaries,  the  government  has

empanelled  a  large  number  of  hospitals  on  CGHS  panel,

however, the rates charged for such facility shall be only at the

CGHS  rates  and,  hence,  the  same  are  paid  as  per  the

procedure.  Though the respondent-State has pleaded that the

CGHS  has  to  deal  with  large  number  of  such  retired

beneficiaries and if the petitioner is compensated beyond the

policy, it would have large scale ramification as none would

follow the procedure to approach the empanelled hospitals and

would rather choose private hospital as per their own free will.

It  cannot  be  ignored  that  such  private  hospitals  raise

exorbitant  bills  subjecting  the  patient  to  various  tests,

procedures and treatment which may not be necessary at all

times.  

13) It  is  a  settled  legal  position  that  the  Government

employee during his life time or after his retirement is entitled

to get the benefit of the medical facilities and no fetters can be

placed on his rights.  It is acceptable to common sense, that

ultimate decision as to how a patient should be treated vests

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only with the Doctor, who is well versed and expert both on

academic  qualification  and  experience  gained.   Very  little

scope is left to the patient or his relative to decide as to the

manner in which the ailment should be treated.   Speciality

Hospitals are established for treatment of  specified ailments

and services of Doctors specialized in a discipline are availed

by  patients  only  to  ensure  proper,  required  and  safe

treatment.  Can it be said that taking treatment in Speciality

Hospital  by  itself  would  deprive  a  person  to  claim

reimbursement solely on the ground that the said Hospital is

not included in the Government Order.  The right to medical

claim  cannot  be  denied  merely  because  the  name  of  the

hospital is not included in the Government Order.  The real

test  must  be  the  factum of  treatment.   Before  any medical

claim is honoured, the authorities are bound to ensure as to

whether the claimant had actually  taken treatment and the

factum of treatment is supported by records duly certified by

Doctors/Hospitals  concerned.   Once,  it  is  established,  the

claim cannot be denied on technical grounds.  Clearly, in the

present case, by taking a very inhuman approach, the officials

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of the CGHS have denied the grant of medical reimbursement

in full to the petitioner forcing him to approach this Court.     

14) This is hardly a satisfactory state of affairs.  The relevant

authorities are required to be more responsive and cannot in a

mechanical  manner  deprive  an  employee  of  his  legitimate

reimbursement.   The  Central  Government  Health  Scheme

(CGHS) was propounded with a purpose of  providing health

facility scheme to the central government employees so that

they are not left without medical care after retirement.  It was

in furtherance of  the object  of  a  welfare  State,  which must

provide for such medical care that the scheme was brought in

force.  In the facts of the present case, it cannot be denied that

the writ petitioner was admitted in the above said hospitals in

emergency conditions.  Moreover, the law does not require that

prior permission has to be taken in such situation where the

survival of the person is the prime consideration.   The doctors

did his operation and had implanted CRT-D device and have

done so as one essential and timely.     Though it is the claim

of the respondent-State that the rates were exorbitant whereas

the rates charged for such facility shall be only at the CGHS

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rates and that too after following a proper procedure given in

the  Circulars  issued  on  time  to  time  by  the  concerned

Ministry, it also cannot be denied that the petitioner was taken

to hospital under emergency conditions for survival of his life

which requirement was above the sanctions and treatment in

empanelled hospitals.   

15) In  the  present  view  of  the  matter,  we  are  of  the

considered opinion that  the  CGHS is  responsible  for  taking

care  of  healthcare  needs  and  well  being  of  the  central

government  employees  and  pensioners.   In  the  facts  and

circumstances  of  the  case,  we  are  of  opinion  that  the

treatment  of  the  petitioner  in  non-empanelled  hospital  was

genuine  because  there  was  no  option  left  with  him  at  the

relevant time.  We, therefore,  direct the respondent-State to

pay  the  balance  amount  of  Rs.  4,99,555/-  to  the  writ

petitioner.  We  also  make  it  clear  that  the  said  decision  is

confined to this case only.

16) Further,  with  regard  to  the  slow  and  tardy  pace  of

disposal  of  MRC  by  the  CGHS  in  case  of  pensioner

beneficiaries and the unnecessary harassment meted out to

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pensioners who are senior citizens,  affecting them mentally,

physically and financially, we are of the opinion that all such

claims shall  be attended by a Secretary level  High Powered

Committee in the concerned Ministry which shall meet every

month for quick disposal of such cases.   We, hereby, direct

the  concerned Ministry  to  device  a  Committee  for  grievance

redressal  of  the  retired  pensioners  consisting  of  Special

Directorate  General,  Directorate  General,  2  (two)  Additional

Directors and 1 (one) Specialist in the field which shall ensure

timely and hassle free disposal of the claims within a period of

7 (seven) days.  We further direct the concerned Ministry to

take steps to form the Committee as expeditiously as possible.

Further,  the  above  exercise  would  be  futile  if  the  delay

occasioned at the very initial stage, i.e., after submitting the

relevant claim papers to the CMO-I/C, therefore, we are of the

opinion that  there shall  be a timeframe for  finalization and

disbursement  of  the  claim amounts  of  pensioners.   In  this

view, we are of the opinion that after submitting the relevant

papers for claim by a pensioner, the same shall be reimbursed

within a period of 1 (one) month.    

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17) In view of  the  foregoing  discussion,  we  dispose  of  the

petition filed by the writ petitioner with the above terms.   

...…………………………………J.             (R.K. AGRAWAL)

…………….………………………J.            (ASHOK BHUSHAN)

NEW DELHI; APRIL 13, 2018.