"The Apex court slams ‘inhuman’ govt decisionThe Times of India (New Delhi edition)14 Apr 2018
Opposing his plea, the Centre said reimbursement must be done on the basis of fixed rates since private hospitals, not empanelled under the scheme, charge high amounts for treatment. The bench slammed the Centre for taking an "inhuman approach" by denying the benefits and directed reimbursement of the rest of the amount within a month.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 694 OF 2015
Shiva Kant Jha
Versus
Union of India
.... Petitioner(s)
.... Respondent(s)
JUDGMENT
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).
2) Brief facts;
a) The petitioner herein is a CGHS beneficiary (retired
Date: 2018*14.13 ' ' X \ 15:11:13(131" Reason: --* 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 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
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 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 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.
(c) In the second set of Bills of the Jaslok Hospital, the petitioner’s
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 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 3,00,000/- to the petitioner as an interim relief.(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 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
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 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.
4
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
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.
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 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
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the CGHS and the petitioner did not approach the empaneled hospital
during medical 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 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
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 procedure which is followed
for the purpose of medical
reimbursement claims of CGHS beneficiaries have been set out
6
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 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 (R&H) of the respective Zonal Office and
also send one hard 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 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. (e) Pay & Accounts Office
credits the approved amount of MRC in the account of beneficiary through
Electronic Clearing System (ECS).
7
The procedure of appeal/remedy in CGHS regarding MRC is
given hereunder:
(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. (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 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 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
8
no such cases involving reimbursement from two sources is pending
in CGHS.
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 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.
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
9 Committee again did not find any justification for the
implant 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 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 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
petitioner in the present writ petition. \
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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 paid as per the
procedure. Though the respondent-State has pleaded 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 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 should be treated vests
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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 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
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 case, by taking
a very inhuman approach, the officials
12
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
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 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 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
13
rates and that too after following a proper procedure given
in the Circulars issued on time to time by the concerned 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 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 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
14
pensioners who are senior citizens, affecting them mentally,
physically and financially, we are of the opinion that all 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) 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 of the opinion that
there shall be a timeframe for finalization and 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.
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17) In view of the foregoing discussion, we dispose of the petition
filed by the writ petitioner with the above terms.
(R.K. AGRAWAL)
J.
....................................................J.
(ASHOK BHUSHAN)
NEW DELHI; APRIL 13, 2018.
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