BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 08/04/2010 CORAM THE HONOURABLE MR.JUSTICE P.JYOTHIMANI W.P.(MD)No.11827 of 2009 V.Selvaraj .. Petitioner Vs 1.The Secretary to Government, Finance (Pension) Department, Chief Secretariat, Chennai-600 009. 2.The Director of Pension, 259, Anna Salai, III Block, 2nd Floor, D.M.S.Campus, Teynampettai, Chennai-6. 3.The District Treasury Officer, Theni District, Theni. .. Respondents Writ petition filed under Article 226 of the Constitution of India for issuance of a writ of certiorarified mandamus to call for the records of the second respondent relating to N-Dis.19254/09/E-5 dated 21.07.2009 and quash the same and consequently direct the respondents to make payment of the eligible amount of the medical reimbursement bill to the petitioner without insisting the objection of the non-inclusion of the particular treatment of the disease by the Government, within a specified time frame that may be fixed by this Court. !For petitioner ... Mr.S.Visvalingam ^For respondents ... Mr.R.Manoharan, Govt.Advocate :ORDER
The petitioner, who joined as Basic Health Worker was subsequently
promoted as Health Inspector and retired in the same capacity on 31.01.2003 on
attaining the age of superannuation. He is a member of Tamil Nadu Government
Pensioner’s Health Fund Scheme from the date of retirement.
2. It is stated that after retirement, he was admitted in the Meenakshi
Mission Hospital and Research Centre, Madurai on 25.05.2006 for the treatment of
“BILATERAL INGUINAL HERNIA. (BOWEL LOOP + MESENTRY) PROSTATOEMGALY” and
discharged on 27.05.2006, and in that regard, he has incurred an expenditure of
Rs.33,692.50. It is stated that the nature of treatment comes under Gastro
Enterology and the same is an approved one as per G.O.No.378, Finance
Department, dated 13.10.2005. After discharge, the petitioner has submitted all
the necessary certificates and made an application for reimbursement of the
expenditure incurred to the extent of Rs.33,692.50. However, the application
submitted by him came to be returned by the second respondent with an
endorsement that the disease for which the petitioner has undergone treatment is
not covered under G.O.No.378, Finance Department, dated 13.10.2005. In these
circumstances, the present writ petition is filed challenging the said
endorsement made by way of return, by the second respondent.
3. It is not in dispute that the petitioner is a member of the Scheme and
he has also undergone the particular treatment. The expenditure incurred by the
petitioner in respect of the treatment undergone by him for which the
application for reimbursement has been made, is also not in dispute. However,
the endorsement shows that the nature of treatment taken is not included in the
list of treatments approved by the Government. That can never be a ground for
the purpose of refusal of reimbursement of the medical expenditure incurred. The
law is settled that it is not the nature of the treatment which can be refused
by the Government or any other authority and it is ultimately for the concerned
person as per the advise of the Doctors, treatments are given. In such view of
the matter, it was in Surjit Singh v. State of Punjab reported in 1996 (1)
S.L.R. 786, the Supreme Court has held that one has a right of self preservation
of his life which is guaranteed under Article 21 of the Constitution of India.
In that case, it was held that, for the purpose of taking treatment, the
Government cannot expect a patient to stand in the queue of the hospital of its
choice and it is for the concerned person to decide as to whether the treatment
has to be obtained. As far as the nature of treatment as stated above and it is
for the medical experts to decide and not for the Government as a matter of
policy. Subsequently, it was in Paschin Banga Khet Mazdoor Samity and others v.
State of West Bengal and another reported in 1996 (4) SCC 37, while reiterating
the above stand of the Supreme Court, it was held that it is a matter of right
under Article 21 of the Constitution of India and that the nature of treatment
cannot be a ground for denial of the reimbursement of medical expenses. The
Supreme Court in the case of General Assurance Society Ltd., v. Chandumull Jain
& Anr. reported in 1966(3) SCR 500, which relates to the contract of insurance,
also reiterated the said stand and it has been held consistently by this Court
in a series of judgments. In such view of the matter, since the petitioner is a
member of the scheme, he is entitled for the reimbursement, however subject to a
maximum amount to which he is entitled as per the Scheme.
4. In such view of the matter, the impugned order of endorsement made by
the second respondent is set aside, on the petitioner resubmitting the proposal
within one week from the date of receipt of a copy of this order along with
other materials to the second respondent. On receipt of the same, the second
respondent shall pass orders granting reimbursement subject to the maximum limit
to which the petitioner is entitled to, as per the Scheme and if there are no
other legal impediments, within a period of four weeks therefrom.
5. The writ petition is allowed. No costs.
KM
To
1.The Secretary to Government,
Government of Tamil Nadu,
Finance (Pension) Department,
Chief Secretariat,
Chennai-600 009.
2.The Director of Pension,
259, Anna Salai,
III Block, 2nd Floor,
D.M.S.Campus,
Teynampettai,
Chennai-6.
3.The District Treasury Officer,
Theni District,
Theni.