W.P.(C)/12853/2009 of SURAJ BHAN Vs GOVT OF NCT OF DELHI AND ORS

* IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) No.12853/2009

Date of decision : 12.3.2010

Suraj Bhan.

.......Petitioner.

Through : Mr. Manohar Singh, Adv. Versus

Govt. of N.C.T. of Delhi & Others. …....... Respondents.

Through : Ms. Sonia Sharma and Ms. Amita Arora for the respondent.

CORAM

* HON'BLE MR.JUSTICE KAILASH GAMBHIR

1. Whether the Reporters of local papers may

be allowed to see the judgment? Yes To be referred to Reporter or not? Yes To be referred to Reporter or not? Yes

2. To be referred to Reporter or not?

3. Whether the judgment should be reported

in the Digest?

Yes

Kailash Gambhir, J. (ORAL)

1. By the present petition filed under Article 226 of the Constitution of India, the petitioner seeks issuance of directions to the respondents for reimbursement of the medical expenses incurred by the petitioner.

W.P.(C) No.12853/2009 Page 1 of 8

2. conspectus of facts as set out by the petitioner relevant for deciding the present petition are that the petitioner was serving as District Employment Officer, North/West, Kirby Place, Delhi Cantt. and retired on 31.8.2002. In the month of April, 2003, circular issued by the officer on special duty (Medical) Govt. of NCT of Delhi, was shown to the petitioner for getting the medical facility card prepared and the petitioner on 16.4.2003 applied for the same and requested the employment officer South/West to deduct the requisite amount from his provisional pension. The petitioner was suffering from Asthama and was under treatment in Sir Ganga Ram Hospital, New Delhi from 3.7.2004 to 9.7.2004. As the said card was still not issued, the petitioner vide letter dated 12.7.2004 again requested the employment officer South/West to issue the medical card, who vide letter dated 23.7.2004 directed the petitioner to deposit lump sum amount for availing medical facilities of Delhi Govt. Thereafter, the petitioner deposited sum of Rs. 6,000/- on 3.8.2004 and further Rs. 3,000/- on 4.8.2004 with the concerned department and subsequently the medical facility card was issued to the petitioner. On 4.9.2004 the petitioner moved an application with the respondent No.2 for reimbursement of Rs. 33,654/- which he had paid to Sir Ganga Ram Hospital and vide letter dated 20.05.2005 the request of the petitioner was declined by the Employment Officer (SW) on the ground that

W.P.(C) No.12853/2009 Page 2 of 8

medical reimbursement claim can only be allowed prospectively from the date of deposit of membership fee. Hence, on 4.7.2005 another letter was written by the petitioner to respondent No. 3 for reimbursement of the claim, but the same was declined vide letter dated 8.8.2005. Again, the petitioner moved an application dated 12.4.2006 to the respondent no.2 which was declined. Thereafter, under wrong impression, the petitioner filed complaint dated 18.9.2006 before the consumer disputes redressal forum which vide order dated 10.11.2006 was dismissed on the ground of non-maintainability. Feeling aggrieved with the above stated circumstances, the petitioner has approached this court for relief by way of the present petition.

3. On the last date of hearing, Ms. Sonia Sharma, counsel appearing for Govt. of NCT of Delhi took an adjournment on the ground that the respondent shall pay the necessary amount towards the medical reimbursement of the petitioner before the next date. Ms. Sonia Sharma today submits that such instructions were given to her by Mr. Vijay Sharma, Employment Officer, employed with respondents No. 2 and 3. Today, Mr. Umrao Singh, Employment Officer and Mr. A.K. Sharma, Superintendent with respondent No. 1 submit that under the relevant rules, the respondents are not obliged to grant the medical reimbursement to the petitioner. Ms. Sonia Sharma, counsel

W.P.(C) No.12853/2009 Page 3 of 8

further submits that under the revised scheme announced by the Delhi Government vide office memorandum dated 25[th] October, 2007 it was for the petitioner to have opted for the scheme and once having not become member of the said scheme, the petitioner is not entitled to the medical reimbursement. Counsel further submits that the scheme is prospective in nature and the same would be effective once an employee becomes member of the scheme and not otherwise. The contention of counsel for the respondent is that since the petitioner on his retirement failed to opt for the said scheme, therefore, he is not entitled to the benefit of the same.

4. On the other hand, counsel for the petitioner placed reliance on the judgment of this Court in the case of V.K. Jagdhari vs

Union of India & Ors. 125(2005) DLT 636. The petitioner also placed reliance on the judgment of the Division Bench of this Court in Government of NCT of Delhi & Ors. Vs Som Dutt Sharma 118 (2005) DLT 144(DB) and S.K. Sharma vs Union of India and Anr. 2002 (64) DRJ 620.

5. I have heard counsel for the parties.

6. The issue is no more res integra as in the case of S.K. Sharma (supra), this Court clearly held that the petitioner after getting retired cannot be denied the benefit of the medical reimbursement simply because of the fact that he did not opt for the

W.P.(C) No.12853/2009 Page 4 of 8

said scheme. In this case also the claim of the employee was rejected on the ground that he was not covered under the CGHS Rule not being part of the scheme but still retired Central Government employee residing in non-CGHS area can make CGHS card for himself and his dependent family members from the nearest centre where CGHS is functional. Further placing reliance on some authoritative pronouncements of the Apex Court, this Court in the above case took view that the petitioner cannot be discriminated against, merely because he is not member of the CGHS scheme as he was staying in non-CGHS area. In this case also the employee had applied to become card holder later in the period.

7. In the case of V.K. Jagdhari (supra), which has been relied by the petitioner, similar question arose before the Court and objection was taken that since the employee had opted for the CGHS card after his surgery, therefore, he was clearly disentitled to the claim of reimbursement. Answering the said question in negative, the Court clearly held that the pensioner cannot be discriminated against merely because he has not opted for CGHS scheme or he resides outside non-CGHS area. Taking into consideration the ratio of the judgments in the S.K Sharma (supra) and Som Dutt Sharma (supra) case, this court consolidated the legal position and held that:

W.P.(C) No.12853/2009 Page 5 of 8

“The position emerging from various decisions of this Court may be summarised as follows:

1) Even if employee contributes after availing medical facilities, and becoming member after treatment, there is entitlement to reimbursement (DB) Govt. of NCT v. S.S. Sharma : 118(2005)DLT144

2) Even if membership under scheme not processed the retiree entitled to benefits of Scheme - Mohinder Pal v. UOI: 117(2005)DLT204 .

3) Full amounts incurred have to be paid by the employer; reimbursement of entire amount has to be made. It is for the Government and the hospital concerned to settle what is correct amount. Milap Sigh v. UOI : 113(2004)DLT91 ; Ran deep Kumar Rana v. UOI : 111(2004)DLT473

4. The pensioner is entitled to full reimbursement so long the hospital remains in approved list P.N. Chopra v. UOI, (111) 2004 DLT 190

5) Status of retired employee not as card holder: S.K. Sharma v. UOI, : 2002(64)DRJ620 ;

6)If medical treatment is availed, whether the employee is cardholders or not is irrelevant and full reimbursement to be given, B.R. Mehta v. UOI : 79(1999)DLT388 .'

The status of retired Government Employee was held to be independent of the scheme and rules in so far as the entitlement to medical treatment and/or CGHS benefits were concerned (ref. V.K. Gupta v. Union of India, : 97(2002)DLT337 ). Similarly in Narender Pal Sigh v. Union of India, : 79(1999)DLT358 , this Court had held that Government was obliged to grant ex-post factor sanction in case an employee requires specialty treatment and there is nature of emergency involved.”

8. It is quite shocking that despite various pronouncements

of this Court and of the Apex Court the respondents in utter defiance of the law laid down have taken position that the pensioner is not entitled to the grant of medical reimbursement since he did not opt to become member of the said health scheme after his retirement or

W.P.(C) No.12853/2009 Page 6 of 8

before the said surgery undergone by him. It is 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 on the pretext that he has not opted to become member of the scheme or had paid the requisite subscription after having undergone the operation or any other medical treatment. Under Article 21 of the Constitution of India, the State has constitutional obligation to bear the medical expenses of Government employees while in service and also after they are retired. Clearly in the present case by taking very inhuman approach, these officials have denied the grant of medical reimbursement to the petitioner forcing him to approach this Court. The respondents did not bother even after the judgment of this Court was brought to their notice and copy of the same was placed by the petitioner along with the present petition.

9. In the light of the aforesaid, the present petition is allowed.

10. The respondents are directed to pay the said medical claim of the petitioner along with 18% interest from the date of submission of his bill. The said payment shall be made by the respondent within one month from the date of this order. Additional costs of Rs. 10,000/- is also imposed on the respondents for causing delay in making the

W.P.(C) No.12853/2009 Page 7 of 8

said payment to the petitioner.

MARCH 12, 2010 rkr

KAILASH GAMBHIR,J

W.P.(C) No.12853/2009 Page 8 of 8