JUDGMENT
Jasbir S. Dhaliwal, Member (J)
1. Through this single order, we are disposing of the above-mentioned two Original Applications as these involve identical questions of facts and law. It is coincident that both the petitioners are the employees of the Directorate of Census Operations, U.T., Chandigarh, posted locally, whose medical bills are under clouds for the purposes of reimbursement.
2. Applicant in O. A. No. 763-CH of 1998 – Dharam Pal is an Assistant whose wife, Smt. Sudesh Kumari, is serving as a Junior Scale Stenographer in the office of the Director Health Services, U.T., Chandigarh (General Hospital, Sector 16), since September, 1987. Applicant had been claiming medical reimbursement from his own department, for himself, his wife, children and dependants, since his joining service. On recommendations of the IVth Punjab Pay Commission, the State of Punjab granted Fixed Medical Allowance (‘FMA’ for short) of Rs. 250/- per month to all its eligible employees on a uniform basis w.e.f. 1.1.1998 (Annexure A-1). This allowance has been made payable without any option left to the Govt. employees and after this order becomes effective, there shall be no reimbursement for outdoor treatment w.e.f. 1.1.1998. However, the facility for reimbursement of expenditure incurred on indoor treatment shall continue as before. Chandigarh Administration issued an order (Annexure A-2) on 9.1.1998 on similar lines which, in fact, is identical to the decision taken by the Punjab Govt. Applicant submitted an application dated 4.2.1998 to the respondents clarifying therein that he will not prefer any claim for medical reimbursement for his wife and will confine it to his children and other dependants (Annexure A-3). Thereafter, Respondent No. 2 – Secretary (Health), Govt. of India, issued a circular dated 6.4.1998 according to which applicant was required to submit a joint declaration, alongwith his spouse, devised by the office of Respondent No. 3. As desired, applicant submitted the joint declaration, signed by him and his wife again mentioning that he will claim reimbursement of medical expenses for his family, excepting such claims for his wife (Annexure A-4). Respondent No. 3 issued another circular dated 14.5.1998 (Annexure A-9) vide which the applicant was asked to submit a joint declaration again. Applicant submitted a representation (Annexure A-5). He has placed on record a letter issued by the Commissioner of Income Tax, Patiala vide which officials of the Income Tax Department who are also Central Govt. employees, covered under the Central Civil Services (Medical Attendance) Rules, 1944 wherein a declaration was sought from the employees of that department that the concerned employee will not claim reimbursement for his wife who happens to be an employee under a State Govt. or an Autonomous Body etc. and will claim medical reimbursement only for the remaining members of his family. Copy of this letter is Annexure A-6. He has also placed on record the conditions, as circulated by the Govt. of Punjab on entitlement of its employees for medical reimbursement when the spouse(s) of such Govt. employees(s) happens to be an employees of the State Govt. or the Central Govt. or an Autonomous Body, owned or controlled by such Govt. (Annexure A-7). He has also placed on record a clarification from the Govt. of Haryana dated 26.3.1998 providing for similar conditions. However, the representation- Annexure A-5 of the applicant, has been rejected by the respondents vide
orders dated 27.5.1998 (Annexure A-8). Respondent No. 3 asked the applicant to produce a certificate, alongwith a joint declaration to the effect that the wife of the applicant is not in receipt of Fixed Medical Allowance, even though a joint declaration (Annexure A-4) had already been submitted by him. Respondent No. 3 fixed 5th June, 1998 as the cut off date for submitting joint declaration alongwith requisite certificate mentioning that no medical claim will be entertained in future in case such declaration is not given as per Annexure A-9. Applicant claims that he has drawn the attention of the respondents to the rights of spouses for medical reimbursement when both happen to be Govt. employees under the State and the Central Govt. being governed under different sets of Medical Attendance Rules. He claims that he is being discriminated against as many other employees, named by him in the O.A., and also the employees of the Income Tax Department are not made to suffer under the circular/letter – Annexure A-9. He seeks a declaration that, such circular and rejection of his claims is ultra vires the civil rights of the spouses who happen to be Govt. Servants, particularly when P.M. A. given to the employees of Punjab and Union Territory Administration is without leaving with them any option, whether to accept such allowance or not. The use of the word “without option” leaves the respondents with unbridled and arbitrary powers for refusing medical reimbursement facilities which are guaranteed to them under the Medical Attendance Rules. It is pleaded that the circular issued by the Govt. of Punjab and adopted by the Union Territory Administration, cannot have the overriding effect on the C.C.S. (M.A.) Rules applicable to the Central Govt. employees.
3. Applicant has further prayed for a declaration that he is entitled to claim medical facilities and that the threat issued by Respondents 2 & 3 of denying reimbursement of his medical claims, is illegal. He also claims protection under Articles 14 and 16 of the Constitution against discrimination as such medical reimbursement claims are permitted to other Central Govt. employees, mentioned in the O.A. He prays for a direction for amendment of the rules to the extent it has the effect of denying claims for medical facilities to the Central Govt. employees on grant of F.M.A. to their spouses. He has prayed for a direction to the respondents to remove the words “Without option” in the circular (Annexure A-1), issued by the State of Punjab so that his wife can exercise option and claim medical facilities. The State of Punjab is Respondent No. 5 in this case.
4. Please taken by the applicant – Ashwani Kumar in O.A. No. 839-CH of 1998 are similar to the pleas of Sh. Dharam Pal. His wife is working as an A.S.I, in the office of the Addl. Director General of Police (Computer & Wireless), Punjab. He has placed on record as Annexure A-1 the initial letter, dated 14.5.1985 clarifying the rights of Govt. servants when Fixed Medical Allowance is provided by Govt. of Punjab. It leaves the option to spouse to claim open reimbursement for himself and for his entitled family members notwithstanding the fact that the spouse is in receipt of Fixed Medical Allowance. He has also placed on record the circular issued by the Commissioner of Income Tax. He has even tried to waive her right for Fixed Medical Allowance which was not accepted by the State of Punjab. He has prayed for quashing the C.C.S. (M.A.) Rules, 1944 in so far as these rules deprive the applicant of reimbursement of medical expenses incurred on himself and his dependants on the ground that his wife, an employee of the State of Punjab, posted at Chandigarh, is in receipt of Rs. 250/- per month as Fixed Medical Allowance. He prays for quashing of Memo dated 14.5.1998 (Annexure A-6) and Memo dated 4.6.1998 (Annexure A-8), both issued by Respondent No. 3 i.e. the Director, Census Operations, U.T., Chandigarh. He prays for a direction to Respondent No. 3 not to insist for a fresh declaration from him or his wife and to pay him his claims for medical reimbursement in accordance with the joint declaration
submitted by him and his wife (Annexure A-5) and allow reimbursement in respect of himself and his dependant son. He further prays for a direction to Respondent No. 1 to approach the Govt. of Punjab to stop payment of Fixed Medical Allowance to his wife so that the impediment created under C.C.S.(M.A.) Rules is removed.
5. In both the cases, the respondents have filed written statement taking identical pleas. Reference is made to the case of Dharam Pal for the sake of convenience.
6. Respondents plead that Annexure A-1 and A-2 are orders issued by Govt. of Punjab and the Chandigarh Administration and they have nothing to do with it. When the spouses happen to be employees of the State Govt. and the Central Govt., the one governed under C.C.S. (M.A.) Rules, 1944 is entitled to choose the medical facilities available under these rules or the facilities available under the rules applicable to the State Govt., Corporation, Local Bodies etc. wherever the other spouse is employed. After the State of Punjab and the Chandigarh Administration enforced Fixed Medical Allowance w.e.f. 1.1.1998 on a uniform basis, without any option, Respondent No. 3 through Annexures R-1, R-2 and R-3 called for fresh joint declarations alongwith certificate from the employers of the spouses that such spouses are not getting any Fixed Medical Allowance/Medical reimbursement or other Medical facilities from his/her office in respect of himself and other members of the family. Joint declaration was submitted by the applicant and his wife but the same was not found in accordance with Medical Attendance Rules as his wife was receiving F.M.A. w.e.f. 1.1.1998. For this reason, his claims have not been processed for payment and order at Annexure A-8, rejecting his representation was passed. They plead that under Punjab Civil Service (Medical Attendance) Rules, 1940 a Govt. servant is not entitled to claim reimbursement in respect of any member of his family who is an employee of other State/Central Govt. if such an employees is earning Rs. 250/- per month. They plead that Fixed Medical Allowance includes allowance for other dependant members of the family and, thus, applicants in these cases are not entitled for medical reimbursement. Regarding other Central Govt. employees they plead that they had submitted joint declarations which were in accordance with the Medical Attendance Rules. Applicants have filed rejoinder.
7. The State of Punjab has not filed reply in either of these cases. We have heard Sh. I.S. Balhara and Sh. S.S. Khetarpal, counsel for the applicants and Sh. G.S. Bal and Sh. Sanjiv Sharma, counsel for the respondents.
8. For considering the issue involved in these cases, we are required to examine the Fixed Medical Allowance enforced by the State of Punjab and the Union Territory Administration, payable to its employees. It is to be seen whether this Fixed Allowance is payable to the Govt. employee alone or it covers the claim of the entire family as defined under both – the Punjab Govt. and the Central Govt., Medical Attendance Rules. Both the applicants have placed on record excerpts from the Punjab State rules and Annexures A-1 and A-2 also show that payment of F.M.A. is without any option from the recipient.
9. A reading of Annexures A-1 and A-2 and the Punjab Civil Services (Medical Attendance) Rules, 1940 makes it clear that Fixed Medical Allowance does not cover the entire claims for medical facilities or reimbursement to the said employees. This F.M.A. is only in lieu of or towards the outdoor treatment or its expenses while their entitlement for indoor treatment, free of charge or on the basis of full reimbursement of expenses, remains with them. The circular issued by the office of the respondent – Census Operations, U.T., Chandigarh makes a presumption as if the Fixed Medical Allowance would cover the entire medical claim of the family of the Govt. servant for medical facilities under the relevant rules.
In our opinion, such a presumption is illegal and violative of the very spirit of the Central Civil Services (Medical Attendance) Rules. The framers of the said rules could not have ever intended to deny the medical facilities, including reimbursement claims, merely on the grant of Fixed Medical Allowance for outdoor treatment payable to spouses of the Central Govt. employees.
10. We have examined Para 50 of the Punjab Civil Services (Medical Attendance) Rules, 1940 as given in the book by Sh. Amrit Singh Chopra in its 10th Edition, at Page 47. This sheds sufficient light on the issues involved in these cases. It provides that when both being Govt. employees, and one of the spouses is serving in the State Govt. and the other is in another State Govt. or the Central Govt. and the medical facilities applicable to both of them provide for a Fixed Medical Allowance to both of them, they both are entitled to the said allowance. Similarly, in Paras (iii) & (iv) of Para 50 it is laid down that when wife is claiming Fixed Medical Allowance, it is open to the husband to claim open reimbursement for himself and for his entitled dependants with entitlement of free treatment/reimbursement of medical charges as in-door patient for himself and for his entitled dependants. This paragraph and Annexures A-1 & A-2, on a plain reading, show that the Fixed Medical Allowance is payable to the eligible Govt. employees of Punjab or U.T. Administration, Chandigarh and this is in the nature of individual medical allowance and not a fixed family medical allowance. It is stressed that it specifically refers to the employees/pensioners and not their family members as far as Fixed Medical Allowance is concerned.
11. There is another angle of examining this. Annexures A-1 and A-2 have been issued by the Govt. of Punjab and the Chandigarh Administration, extending certain benefits to their employees to a limited extent regarding their claims for out-door treatment only. Can an order, issued by such Govt. for a limited benefits, have the effect of denying the (sic) the Central Civil Services (M.A.) Rules, 1944 ? In our opinion, it could not have been the intention of the framers of the rules for the Central Govt. employees or the other Govt. employees. If it has such an effect, we shall not wait for another moment to strike it down, even if it has such effect just by implication. We are further of the opinion for the added reason that the orders at Annexure A-1 and A-2 do not even leave an option to their employees for refusing the Fixed Medical Allowance when their spouses are Central Govt. employees, entitled to medical facilities which may cover the entire family.
12. If the Fixed Medical Allowance had been for the entire family, which in our opinion it is not, and had it been in lieu of the entire medical facilities/claims, one could understand the insistance of the respondents in compelling a Govt. servant for choosing either of the medical facilities extended to the family of an employee of the Punjab Govt. and Chandigarh Administration or to the Central Govt. Once we find that neither the Fixed Medical Allowance covers the entire medical facilities and is only in lieu of out-door treatment, nor it is an allowance meant for the entire family, but is only for individual State Govt. employee, we find the action of the respondents in issuing the impugned circular and the order of rejection of claims to be irrational and arbitrary. This is also found to be violative of the rights guaranteed under Central Civil Services (Medical Attendance) Rules, 1944. If any orders have been issued by the Govt. of India to the effect that a Central Govt. servant can be denied the claim for reimbursement for medical attendance/treatment if his/her spouse is in receipt of a Fixed Medical Allowance, we hereby strike down such order/decision on which the circular issued by the office of Respondents 2 & 3 may be based. In our opinion, we are fortified by a reading of Rules 3 and 6 of the C.C.S. (M.A.) Rules. After separately defining medical attendance and medical treatment, these rules provided for entitlement of the Govt.
servant to medical attendance/treatment free of charge. It is further provide that if he has paid any amount on account of such medical attendance/treatment, he is entitled to be reimbursed by the Govt. These rules being all-pervasive, the decision taken by Govt. of India, Ministry of Health & Family Welfare in its O.M. dated 20th December, 1988 is found to be arbitrary, illegal and opposed to the C.C.S. (M.A.) Rules, 1944 particularly Rules 3 & 6 thereof. On this aspect, we are of the opinion that the orders issued and the declaration proforma circulated by the Income Tax Department is in consonance with these Medical Attendance Rules whereas the circular issued by Respondents 2 & 3 and the form of declaration sought amounting to denial of medical claims/facilities to the present applicants, are illegal. We also find that the employees of the Central Govt. who are similarly placed like the applicants as under Income Tax Department and some of the other departments who are being extended the benefits of these rules with a condition that Central Govt. employees will not lay claim for medical claims/facilities admissible to their spouses if such spouse(s) is/are in receipt of some Fixed Medical Allowance, this is a reasonable condition/restriction which both the applicants have included in their joint declarations. We, thus, hold that the respondents have wrongly refused to accept the joint declarations which are legal and in accordance with the said rules.
13. In view of what has been discussed above, there is no need of either declaring the action of the Govt. of Punjab or U.T. Administration as illegal, nor there is any need for issuing directions for striking down the words “without option” as mentioned in Annexures A-1 and A-2.
14. Both the above O.As are allowed with the declarations, as given above, with a direction to the respondents to accept the joint declarations given by these applicants and their wives, already submitted to them and to consider their claims for medical reimbursement for themselves and their dependants included in the definition of the family in the extant rules. As per their declaration, these applicants will not be entitled to submit claims for medical facilities/reimbursement regarding treatment/medical attendance for their spouses unless there is a change in the rules or their status by leaving service by such spouses for any reason such as superannuation, termination or retirement etc. If the medical bills submitted by the applicants are otherwise found to be in order, the respondents shall reimburse the amounts which are found reimburseable. They shall comply with these directions within a period of three months from the date of receipt of copy of this order.
15. There is no order as to costs.