SHIVA KANT JHAversusUNION OF INDIA

                            [2018] 4 S.C.R. 291                                 291


                           SHIVA KANT JHA                                       A
                                     v.
                           UNION OF INDIA
                 (Writ Petition (Civil) No. 694 of 2015)
                                                                                B
                             APRIL 13, 2018
        [R. K. AGRAWAL AND ASHOK BHUSHAN, JJ.]
       Service Law – Central Government Health Scheme (CGHS) –
Claim under, for reimbursement of medical bills – Denial of – CGHS
pensioner beneficiary, underwent treatment in a non-empanelled                  C
hospital for cardiac ailments and also for cerebral stroke and
paralytic attack – He claimed reimbursement of the medical bills –
Out of the total bills amounting to Rs. 13,84,440/-, he was paid
Rs. 5,84,885/-, while he was denied Rs. 7,99,555/- – Writ petition
filed by him u/Art.32 of the Constitution – Supreme Court directed              D
the respondent to pay a sum of Rs. 3,00,000/- to the petitioner as an
interim relief – Held: 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 – 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             E
of treatment – Once, it is established, the claim cannot be denied on
technical grounds – In the present case, the writ petitioner was
admitted in the hospital in emergency conditions – Law does not
require prior permission to be taken in such situation where the
survival of the person is the prime consideration – CGHS is                     F
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, the treatment of the petitioner in
non-empanelled hospital was genuine because there was no option
left with him at the relevant time – Respondent directed to pay the
balance amount of Rs. 4,99,555/- to the writ petitioner – However,              G
the said decision is confined to this case only – Further, directions
issued with regard to timely disposal of Medical Reimbursement Claim
(MRC) by CGHS in case of pensioner beneficiaries – Constitution
of India – Arts. 14, 21 and 32.
                                                                                H
                                     291
292            SUPREME COURT REPORTS                        [2018] 4 S.C.R.


A           Disposing of the writ petition, the Court
              HELD: 1.1 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
B     be treated vests 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
C     patients only to ensure proper, required and safe treatment. 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
D     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. In the present case, by taking a
      very inhuman approach, the officials of the Central Government
      Health Scheme (CGHS) have denied the grant of medical
E     reimbursement in full to the petitioner. [Para 13][299-C-F]
            1.2 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. CGHS was propounded with a purpose of
F     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
G     denied that the writ petitioner was admitted in the 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. It cannot be denied that the
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            SHIVA KANT JHA v. UNION OF INDIA                            293


petitioner was taken to hospital under emergency conditions for         A
survival of his life which requirement was above the sanctions
and treatment in empanelled hospitals. 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, the treatment of the petitioner in non-
                                                                        B
empanelled hospital was genuine because there was no option
left with him at the relevant time. Therefore, the respondent-
State is directed to pay the balance amount of Rs. 4,99,555/- to
the writ petitioner. The said decision is confined to this case only.
[Paras 14, 15][299-G-H; 300-A-B, C-E]
                                                                        C
        1.3 Further, with regard to the slow and tardy pace of
disposal of Medical Reimbursement Claim (MRC) by the CGHS
in case of pensioner beneficiaries and the unnecessary
harassment meted out to pensioners who are senior citizens,
affecting them mentally, physically and financially, all such claims
shall be attended by a Secretary level High Powered Committee           D
in the concerned Ministry which shall meet every month for quick
disposal of such cases. It is hereby directed that the concerned
Ministry device a Committee for grievance redressal of the
retired pensioners consisting of Special Directorate General,
Directorate General, 2 (two) Additional Directors and 1 (one)
                                                                        E
Specialist in the field which shall ensure timely and hassle free
disposal of the claims within a period of 7 (seven) days. The
concerned Ministry is further directed to take steps to form the
Committee as expeditiously as possible. The above exercise
would be futile if the delay is occasioned at the very initial stage,
i.e., after submitting the relevant claim papers to the CMO-I/C,        F
therefore, there shall be a timeframe for finalization and
disbursement of the claim amounts of pensioners. After
submitting the relevant papers for claim by a pensioner, the same
shall be reimbursed within a period of 1 (one) month. [Para
16][300-F-H; 301-A]
                                                                        G
      CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 694 of 2015.
      Under Article 32 of the Constitution of India.

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294            SUPREME COURT REPORTS                          [2018] 4 S.C.R.


A           Shiva Kant Jha (Petitioner-in-person).
            Ms. Binu Tamta, Ms. Diksha Rai, Anil Hooda (for D. S. Mahra),
      Advs. for the Respondent.
            The Judgment of the Court was delivered by
B            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).

C           2. Brief facts:
             (a) The petitioner herein is a CGHS beneficiary (retired pensioner)
      having a CGHS Card valid for whole life for medical treatment in Private
      Ward. The petitioner herein submitted two sets of his Medical bills under
      the Central Government Health Scheme (CGHS) for reimbursement on
D     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
E
      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
F     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 approval for
      such device implant was not sought”. Again, in fourth attempt, the
      petitioner herein approached the Director General of the CGHS. After
G
      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.

H
              SHIVA KANT JHA v. UNION OF INDIA                                    295
                     [R. K. AGRAWAL, J.]

       (c) In the second set of Bills of the Jaslok Hospital, the petitioner’s    A
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
                                                                                  B
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.
                                                                                  C
       (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                D
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
                                                                                  E
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              F
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. 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
                                                                                  G
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.

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296             SUPREME COURT REPORTS                           [2018] 4 S.C.R.


A            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
B
      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 the CGHS and the
      petitioner did not approach the empanelled hospital during medical
C     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
D     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:-
E            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
F     procedure which is followed for the purpose of medical reimbursement
      claims of CGHS beneficiaries have been set out 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
G           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
H
              SHIVA KANT JHA v. UNION OF INDIA                                   297
                     [R. K. AGRAWAL, J.]

       (R&H) of the respective Zonal Office and also send one hard               A
       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               B
       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.                                                C
       (e) Pay & Accounts Office credits the approved amount of MRC
       in the account of beneficiary through Electronic Clearing System
       (ECS).
      The procedure of appeal/remedy in CGHS regarding MRC is given
hereunder:-                                                                      D
       (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.
                                                                                 E
       (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
                                                                                 F
       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                 G
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 no such cases involving
reimbursement from two sources is pending in CGHS.
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298             SUPREME COURT REPORTS                            [2018] 4 S.C.R.


A            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
B
      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.
C           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 Committee again did not find any justification for the implant
D     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
E     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
F     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
G     petitioner in the present writ petition.
            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
H
              SHIVA KANT JHA v. UNION OF INDIA                                   299
                     [R. K. AGRAWAL, J.]

paid as per the procedure. Though the respondent-State has pleaded               A
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
                                                                                 B
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           C
should be treated vests 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          D
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           E
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         F
case, by taking a very inhuman approach, the officials 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        G
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

                                                                                 H
300             SUPREME COURT REPORTS                            [2018] 4 S.C.R.


A     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
B
      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 rates and that too after following a proper
      procedure given in the Circulars issued on time to time by the concerned
C     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
D     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
E     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 pensioners who are senior citizens, affecting
      them mentally, physically and financially, we are of the opinion that all
F     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)
G     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
H
               SHIVA KANT JHA v. UNION OF INDIA                                  301
                      [R. K. AGRAWAL, J.]

of the opinion that there shall be a timeframe for finalization and              A
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.
       17. In view of the foregoing discussion, we dispose of the petition
filed by the writ petitioner with the above terms.                               B


Divya Pandey                                             Petition disposed of.



                                                                                 C




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                                                                                 F




                                                                                 G




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