respondent no.1 has not denied that the petitioner was suffering
from Osteoarthritis of knee joints since the year 2003 nor that the
petitioner underwent surgery for replacement of both her knees. In
the fresh affidavit, the stand of the responldent is that osteoarthritis
is a chronic disease which has developed over a period of time and
the surgery is a planned surgery and not an emergency and,
therefore, not payable. Respondent no.1 has also stated that the
petitioner should have taken prior approval or advice of her
authorized medical attendant before she went for surgery from nongovernment
hospital. It is the case of the respondent no.1 that even
though Sancheti hospital where the surgery was performed was an
approved private hospital of respondent no.1, just because petitioner
did not take prior advice of her medical attendant, bills were not
payable.
9 Curiously respondent no.1 also states in paragraph 12 that
as per the G.R. dated 16.11.2001, the approved diseases or disease
conditions are spine diseases, joint diseases, painful joint diseases
and joint replacement surgery, diagnostic and therapeutic
arthroscopy of knee joints and there are eight recognized hospitals
for these conditions and in case of emergency, patients can directly
seek treatment from these hospitals. But in all other cases, patient
requires to get prior consent of her authorized medical attendant as
per Rule 2(5) of the Maharashtra State Services (Medical
Attendance) Rules, 1961 ('Said Rules'). It is the case of respondent
no.1 that the treatment received by petitioner is not an emergency
but specialized treatment and that petitioner has not submitted any
emergency certificates issued by Sancheti Hospital and not submitted
any document of her authorized medical attendant referring her to
Sancheti Hospital. It is also stated that the petitioner's medical
condition is chronic disease and not an emergency. Though
respondent no.1 has taken various stands, the main grounds for
rejection according to the respondent no.1 is that (a) in exceptional
cases like that of petitioner, granting approval for medical
reimbursement has to be decided by a High Level Committee
constituted under the chairmanship of Additional Chief Secretary,
Public Health Department and it has been rejected by the committee,
and (b) Prior advice of her medical attendant was not taken.
10 On the ground of discrimination raised by petitioner that
one Mr. P.K.Chawre was reimbursed in the year 2004, it is stated that
same was sanctioned by Industrial, Energy and Labour Department at
their level on 19.5.2004 and before G.R. dated 19.3.2005 came into
existence.
11 It is true that Clause 8, Subclause 5 of the Said Rules,
provides that written prior approval of an authorized medical officer
is required before the Government employee goes and seeks private
medical assistance. In this case, it is not the case of the petitioner
either that she had obtained any such prior approval. The question
that we are asking is, is it so vital to the case of the petitioner ?
Sancheti Hospital where the petitioner underwent surgery is in the
panel of hospitals approved by the Government. The knee
replacement surgery or joint related problems are also approved to
be performed at Sancheti Hospital. By a letter dated 28.5.2011
(Ex.'I') to the petition, it is stated that Sancheti Institute for
Orthopedic and Rehabilitation, Pune is an approved hospital where
Government employee or the members of the family of such
Government employee can take treatment for the ailments
mentioned therein. Items (2) and (3) of the said letter states “Painful
disease of joints and their replacement surgery” and “diagnostic and
surgical arthroscopy and knee joints”, respectively. If it has been so
approved, we fail to understand why the claim of the petitioner was
rejected as it appears from the said letter, the petitioner is entitled to
be reimbursed her medical cost. In the G.R. dated 16.11.2011, at
Item 7, the name of Sancheti Institute of Orthopedic Rehabilitation is
included for treatment of the ailments relating to knee joints. If one
considers the minutes of the meeting held on 23.10.2012, petitioner's
case is simply rejected on the basis that “Operation of the petitioner
is not disease”. In the minutes, it is nowhere explained as to how the
operation performed on the petitioner is not a disease. The relevant
column of the said Minutes is as under:
Decision taken in the meeting of the
Committee on 23.10.2012
An operation on the knee of Smt.
M.P.Patil, Asst. Registrar was done in
Sancheti Institute of Orthopedic &
Rehabilitation, Pune. But as the disease of
knee was not included in the list of the
prescribed disease and hence it was
proposed by the Dept. to present the case
of Smt. M.P.Patil before the Committee as
a special case. But the operation on Smt.
Patil is not any disease but it is a decided
operation and “when such cases had been
presented before the formed Secretariat
Committee before this, then as the
Committee had rejected such cases, hence
the above said case cannot be presented
before Committee” and such remarks were
recorded by the Health Department and
had denied to present the case before the
Committee.
But as Smt. M.P.Patil again
requested for to present the above said
proposal before the Committee , hence the
Dept. has presented the above said case for
the consideration of the committee as the
Special point but the committee has
rejected the above said proposal.
This is also contrary to the affidavit filed by the Government on
7.5.2015 where it is stated that the condition of the petitioner is a
chronic disease. The Committee has rejected without even going into
the case in detail or applying its mind and simply stated that when
such cases had been presented before the Formed Secretariat
Committee before this, then as the committee had rejected such
cases, hence the case of the petitioner cannot be presented before the
Committee and the Health Department had denied to present the
case before the committee but because the petitioner again requested
for to present her case before the committee as a special point, the
department has presented the case before the committee but the
committee has rejected the proposal. This shows there is total nonapplication
of mind and from the decision as recorded by the
Committee, it shows the petitioner's case has not even been
considered and analysed. The proposal of the petitioner was rejected
simply for the sake of rejecting because in the past committee had
rejected such proposal. That cannot be a ground to reject. The
committee ought to have given detailed reasons after considering the
proposal of the petitioner.
Therefore, impugned communication of the respondent
ought to be quashed and set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.7305 OF 2013
Mrs. Madhuri Praful Patil V/s. The State of Maharashtra,
CORAM : ANOOP V.MOHTA AND
K.R.SHRIRAM, JJ.
PRONOUNCED ON: 14.8.2015
Citation; 2016(1)ALLMR210
Rule. Rule made returnable forthwith. With consent of the
parties, petition is taken up for final hearing forthwith.
1 Petitioner has filed this petition under Article 226 of the
Constitution of India challenging the communication dated
21.11.2012 passed by respondent no.1 pursuant to which claim of
petitioner for medical reimbursement was rejected by respondent
no.1.
2 Petitioner, on 20.10.1976, joined the Industrial Court at
Mumbai as Junior Clerk. Thereafter, petitioner was promoted as
Senior Clerk in 1978 and as Clerk of Court in 1984.
3 Petitioner thereafter was promoted to the post of Assistant
Registrar in the year 2004. It is the case of the petitioner that she had
been suffering from pain in both her knees and was taking treatment
for the same since 2003. The pain in the knees was due to
osteoarthritis. Over the years muscles in the knees got wasted. The
pain in the knees became unbearable and the petitioner found it
difficult to commute to her work and was a cause for concern. The
petitioner was advised by an orthopedic surgeon to go for knee
replacement surgery. Petitioner, therefore, got her knees replaced by
surgery at Sancheti Hospital, Pune which is a multispeciality hospital
specially known for knee joint replacements, ortho problems and
related diseases. Though it is a private hospital, the said Sancheti
Hospital is recommended and recognized by the Government of
Maharashtra in its hospital panel for treatment and medical
reimbursement.
4 Petitioner underwent the surgery on 28.4.2011. The whole
medical expenditure incurred by petitioner for replacement of both of
her knees by surgery is about Rs.4,02,244.77. After recovering from
the surgery, petitioner resumed her duties and retired from services
on 30.6.2011 after rendering 34 years of service. Petitioner
submitted her medical bills for reimbursement to respondent no.2
who forwarded it to respondent no.1. This claim of petitioner has
been rejected. It is the case of petitioner that her claim has been
wrongly rejected. It is also submitted that as per the Government
Resolution dated 15.7.1986, the Public Health Department has
specified that 100% medical reimbursement will be provided for the
surgery of painful diseases of joints as well as their replacements and
the treatments done at Sancheti Institute for Orthopedic &
Rehabilitation, Pune. Moreover, the benefit of the said G.R. was
extended to one Mr. P.K.Chaware, President, Industrial Court at
Mumbai by giving him 100% medical reimbursement. Therefore,
there is discrimination.
5 As per G.R. dated 16.11.2011, the Public Health
Department has provided that the reimbursement of medical
expenses of more than Rs.1 Lakh will be sanctioned by the head of
the Ministerial Administrative Department. The said G.R. also
provides the list of the ailments and the private hospitals where such
treatments can be taken and in the list of ailments, painful diseases
of joints and their replacement is included as well as the name of
Sancheti Hospital, where petitioner got her knees replacement by
surgery performed.
6 The Government had to be pushed to file a proper reply.
The first affidavit that was filed on behalf of the Government of
Maharashtra was on 1.4.2015 by one Mr. D.S.Rajput. In the said
affidavit, it was stated that the G.R. dated 19.3.2005 provided that
only 27 diseases which are mentioned therein are applicable for
medical reimbursement and in exceptional cases, which are not
covered in the said 27 diseases, the file is kept before the committee
headed by the Additional Chief Secretary, Public Health Department
for consideration. It is stated that the Public Health Department
returned the proposal of the petitioner and again at the request of
the petitioner, proposal for medical reimbursement was placed
before the said committee. In a meeting of the committee held on
23.10.2012, the petitioner's proposal for medical reimbursement
came to be rejected by the committee. As the details as to who
attended the said meeting and who were in the committee was not
available in the affidavit, the respondents were told to file fresh
affidavit on 6.4.2015 providing all details. Respondent No.1 filed the
fresh affidavit annexing explanation given by the Public Health
Department. It is stated in the said affidavit that as the disease of the
petitioner was not covered by 27 emergency diseases and 5 serious
diseases as mentioned in Annexure A to the Government Resolution
dated 19.3.2005, claim was not payable.
7 Thereafter, as per our directions, respondent no.1 filed one
more affidavit dated 7.5.2015. In the said affidavit, the stand taken
by respondent no.1 is different.
8 Before we proceed further, it should be noted that
respondent no.1 has not denied that the petitioner was suffering
from Osteoarthritis of knee joints since the year 2003 nor that the
petitioner underwent surgery for replacement of both her knees. In
the fresh affidavit, the stand of the responldent is that osteoarthritis
is a chronic disease which has developed over a period of time and
the surgery is a planned surgery and not an emergency and,
therefore, not payable. Respondent no.1 has also stated that the
petitioner should have taken prior approval or advice of her
authorized medical attendant before she went for surgery from nongovernment
hospital. It is the case of the respondent no.1 that even
though Sancheti hospital where the surgery was performed was an
approved private hospital of respondent no.1, just because petitioner
did not take prior advice of her medical attendant, bills were not
payable.
9 Curiously respondent no.1 also states in paragraph 12 that
as per the G.R. dated 16.11.2001, the approved diseases or disease
conditions are spine diseases, joint diseases, painful joint diseases
and joint replacement surgery, diagnostic and therapeutic
arthroscopy of knee joints and there are eight recognized hospitals
for these conditions and in case of emergency, patients can directly
seek treatment from these hospitals. But in all other cases, patient
requires to get prior consent of her authorized medical attendant as
per Rule 2(5) of the Maharashtra State Services (Medical
Attendance) Rules, 1961 ('Said Rules'). It is the case of respondent
no.1 that the treatment received by petitioner is not an emergency
but specialized treatment and that petitioner has not submitted any
emergency certificates issued by Sancheti Hospital and not submitted
any document of her authorized medical attendant referring her to
Sancheti Hospital. It is also stated that the petitioner's medical
condition is chronic disease and not an emergency. Though
respondent no.1 has taken various stands, the main grounds for
rejection according to the respondent no.1 is that (a) in exceptional
cases like that of petitioner, granting approval for medical
reimbursement has to be decided by a High Level Committee
constituted under the chairmanship of Additional Chief Secretary,
Public Health Department and it has been rejected by the committee,
and (b) Prior advice of her medical attendant was not taken.
10 On the ground of discrimination raised by petitioner that
one Mr. P.K.Chawre was reimbursed in the year 2004, it is stated that
same was sanctioned by Industrial, Energy and Labour Department at
their level on 19.5.2004 and before G.R. dated 19.3.2005 came into
existence.
11 It is true that Clause 8, Subclause 5 of the Said Rules,
provides that written prior approval of an authorized medical officer
is required before the Government employee goes and seeks private
medical assistance. In this case, it is not the case of the petitioner
either that she had obtained any such prior approval. The question
that we are asking is, is it so vital to the case of the petitioner ?
Sancheti Hospital where the petitioner underwent surgery is in the
panel of hospitals approved by the Government. The knee
replacement surgery or joint related problems are also approved to
be performed at Sancheti Hospital. By a letter dated 28.5.2011
(Ex.'I') to the petition, it is stated that Sancheti Institute for
Orthopedic and Rehabilitation, Pune is an approved hospital where
Government employee or the members of the family of such
Government employee can take treatment for the ailments
mentioned therein. Items (2) and (3) of the said letter states “Painful
disease of joints and their replacement surgery” and “diagnostic and
surgical arthroscopy and knee joints”, respectively. If it has been so
approved, we fail to understand why the claim of the petitioner was
rejected as it appears from the said letter, the petitioner is entitled to
be reimbursed her medical cost. In the G.R. dated 16.11.2011, at
Item 7, the name of Sancheti Institute of Orthopedic Rehabilitation is
included for treatment of the ailments relating to knee joints. If one
considers the minutes of the meeting held on 23.10.2012, petitioner's
case is simply rejected on the basis that “Operation of the petitioner
is not disease”. In the minutes, it is nowhere explained as to how the
operation performed on the petitioner is not a disease. The relevant
column of the said Minutes is as under:
Decision taken in the meeting of the
Committee on 23.10.2012
An operation on the knee of Smt.
M.P.Patil, Asst. Registrar was done in
Sancheti Institute of Orthopedic &
Rehabilitation, Pune. But as the disease of
knee was not included in the list of the
prescribed disease and hence it was
proposed by the Dept. to present the case
of Smt. M.P.Patil before the Committee as
a special case. But the operation on Smt.
Patil is not any disease but it is a decided
operation and “when such cases had been
presented before the formed Secretariat
Committee before this, then as the
Committee had rejected such cases, hence
the above said case cannot be presented
before Committee” and such remarks were
recorded by the Health Department and
had denied to present the case before the
Committee.
But as Smt. M.P.Patil again
requested for to present the above said
proposal before the Committee , hence the
Dept. has presented the above said case for
the consideration of the committee as the
Special point but the committee has
rejected the above said proposal.
This is also contrary to the affidavit filed by the Government on
7.5.2015 where it is stated that the condition of the petitioner is a
chronic disease. The Committee has rejected without even going into
the case in detail or applying its mind and simply stated that when
such cases had been presented before the Formed Secretariat
Committee before this, then as the committee had rejected such
cases, hence the case of the petitioner cannot be presented before the
Committee and the Health Department had denied to present the
case before the committee but because the petitioner again requested
for to present her case before the committee as a special point, the
department has presented the case before the committee but the
committee has rejected the proposal. This shows there is total nonapplication
of mind and from the decision as recorded by the
Committee, it shows the petitioner's case has not even been
considered and analysed. The proposal of the petitioner was rejected
simply for the sake of rejecting because in the past committee had
rejected such proposal. That cannot be a ground to reject. The
committee ought to have given detailed reasons after considering the
proposal of the petitioner.
12 Therefore, impugned communication of the respondent
ought to be quashed and set aside.
13 In our view, in view of the G.R. dated 16.11.2011 read
with the communication dated 28.5.2011 (Ex.'I' to the petition),
petitioner's case has to be considered and the Government is directed
to reimburse petitioner's claim of Rs.4,02,244.77 together with
interest @ 9% p.a. from the date of the impugned communication
i.e. 21.11.2012, within 4 weeks. Respondent no.1 also to pay a sum
of Rs.25,000/ as cost to the petitioner.
14 Rule made absolute accordingly.
15 Petition stands disposed.
(K.R.SHRIRAM, J.) (ANOOP V. MOHTA, J.)
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