(i) That the respondents may be directed to issue ex post facto sanction letter for the treatment of the eye of the applicant, namely removal of cataract and intra ocular implant and also defray expenses over treatment on submission of bill within a specified period; (ii) That the respondents may also be directed to issue ex post facto sanction for an attendant who accompanied the applicant.
(iii) That the respondents may be directed to reimburse railway fare of the applicant and his attendant from Patna to Madras and back." 2. The applicant retired as Assistant Commissioner of Income Tax on 31.3.88. He was covered under Central Government Health Scheme as at Annexure-A/1 read with Annexure-A/2. He suffered from serious heart ailment and was treated in All India Institute of Medical Science, Bombay Hospital, Bombay and at Madras Appolo Hospital. He was also defrayed expenses for treatment at those places. It is stated that he suffered from Votreous Haemmorage in his right eye and was referred to the Patna Medical College and Hospital, Patna, which referred him to AH India Institute of Medical Sciences vide prescription No. 15395 dated 3.9.87 as at Annexure-A/5. Accordingly, after obtaining sanction of the Central Government Health Scheme vide letter dated 9.9.87, as at Annexure-A/6, he underwent treatment at All India Institute of Medical Sciences as per the prescription as at Annexure-A/7.
3. However, it is stated that the treatment of his eye ailment as per the prescription of All India Institute of Medical Sciences could not improve his condition which had further deteriorated and he suffered from complete loss of vision. Therefore, he again approached the Health Centre, Patna which referred him to PMCH. The PMCH this time referred him for treatment to Arbind Eye Hospital, Madhavi, Madras or Shankar Netralaya, Madras, vide letter No. E/17511 dated 12.10.87 as at Annexure-A/8. Accordingly, he applied for sanction for treatment at any of the two places which was duly sanctioned vide letter dated 10.12.87 for treatment at Shankar Netralaya, Madras as at Annexure-A/10. After obtaining sanction, he (the applicant) proceeded for Madras and was operated upon at Shankar Netralay on 1.3.88, and he stayed there till 14.3.88 vide photo-copies of Diagnosis, operation and discharge instructions as at Annexures-A/12 and A/12-A. He was also called for further check up on 11.4.88 and 26.10.88. Therefore, he went to Shankar Netralaya, Madras on 11.4.88 on authorisation by the Central Government Health Scheme dated 6.4,88, as at Annexure-A/13. He again received sanction by the Central Government Health Scheme vide letters dated 20.10.89 and 10.11.89 for attending examination and treatment at Shankar Netralaya, Madras vide sanction order as at Annexure-A/14, Annexure-A/15 and Annexure-A/16. However, while sanctioning treatment at Shankar Netralaya, vide letter dated 10.11.89, as at Annexure-A/16, the Central Government Health Scheme did not sanction for an attendant to accompany the applicant. This denial of giving attendant to accompany the applicant was unprecedented/arbitrary and hazarduous to his health.
4. The applicant filed on O.A. No. 11/1990 before this Tribunal against the aforesaid denial for attendant to accompany the applicant which was rejected by order dated 11.10.1990. But in view of the subsequent Judgment of the Hon'ble Patna High Court dated 18.1.1991, in CWJC No.6494/90 in the case of Jitendra Narain v. Union of India and Ors. as at Annexure-A/17, the matter requires reconsideration. The applicant was referred to Shankar Netralaya by the Central Government Health Scheme, where he underwent treatment of his eye ailment which was not available at Patna. He improved a lot after surgery in his right eye at Shankar Netralaya, Madras. The Dy. Director, Central Government Health Scheme made certain query in this respect, vide his letter dated 20.11.89, which was replied by the applicant enclosing therewith opinion of the Superintendent, Patna Medical College and Hospital, Patna, and the Superintendent of Nalanda Medical College as at Annexures-21, 21-A and 21-B. Thereafter, the applicant sent a number of reminders by post or by delivering in office as at Annexure-22 series. He also made representation to the Additional Director, Central Government Health Scheme, Patna, and to the Assistant Director General (Hqrs.), Central Government Health Scheme, New Delhi, vide Annexure-A/24 and Annexure-A/25, but of no avail. Hence, the prayer for reconsideration of the order dated 11.10.90, passed in OA No. 11/1990 in the light of the order of the Hon'ble Patna High Court dated 18,1.1991 in CWJC No.6494/90, in case of Jitendra Narain v. Union of India and Ors.
5. The Respondents have resisted the claim. It is stated that the applicant had earlier filed O.A. No. 11 of 1990, with a prayer to allow Railway fare from Patna to Madras and back with attendant, which was rejected vide order dated 11.10.90. It is further stated that the pensioners are not entitled for getting any sort of T.A. either for self or his attendant according to the CGHS Rules. The Shankar Netralay a, Madras, is not a recognised hospital and no case can be referred to any unrecognised/private hospitals, vide letters dated 22.6.85 and 18.3.92, issued by the Ministry of Health and Family Welfare as at Annexure-R/3 & Annexure-R/4. The order of the Hon'ble Patna High Court in CWJC No. 6495 of 1990 is said to be on different footings. The Hon'ble Patna High Court has held that retired Supreme Court Judges/retired High Court judges are not to be treated at par with Central Government pensioners, rather they are to be treated at par with serving employee earning the same emoluments. Therefore, the judgment of the Hon'ble Patna High Court as at Annexure-R/2, would not be applicable in the facts and circumstances of the case.
6. The applicant in his rejoinder to the W.S. has stated that the Directorate of Health Services has illegally cancelled the permission already granted by the Directorate for treatment at Shankar Netralaya, Madras vide Annexures-A/14, A/15 & A/16, and for providing attendant to the applicant, and also, in view of the pronouncements of the Hon' ble Apex Court in the case of State of Punjab v. Mohinder Singh Chawla, reported in (1997) 2 SCC 83=1997(2) SLJ 25 (SC). The applicant had been allowed to go to Madras for specialised treatment as it was not available at Patna as per the recommendation of the PMCH as at Annexure-A/8. It is stated that the'reference to Clause (iv) of the Scheme, as contained in Annexure-A/2 dated 11.10.90 passed in OA No.11/90, is erroneous which requires reconsideration. The Office Memorandum regarding extension of Medical facilities under CGHS to Central Government pensioners residing in Patna, provides that the pensioners would be entitled to the same facilities which is available to the serving Government employees and denial of equal treatment to the applicant would offend Article 14 of the Constitution of India. In this connection, it is further stated that the office memorandum of Ministry of Health and Family Welfare dated 21.9.77, as at Annexure-A/28 provides for extension of medical facility under the Central Government Health Scheme to retired Judges of Hon'ble Supreme Court and Hon'ble High Courts and a comparison of the two Office Memorandum i.e. Annexure-A/2 and Annexure-A/28, show that they contain indentical provisions regarding grant of Health facilities to Hon'ble Supreme Court and Hon'ble High Court Judges and to Central Govt.
pensioners. The order dated 18.1.92, passed by the Hon'ble Patna High Court in CWJC No. 6494/90, applied with the equal forces in the case of the applicant. The applicant was referred to Shankar Netralaya, Madras in the year 1989-90. He underwent the treatment there in the year 1990 itself. Therefore, the letter dated 18.3.92, (Annexure-A/3) wherein Shankar Netralaya Madras is not listed as recognised hospital under the CGHS is not applicable.
7. Heard Shri V.R.P. Singh, counsel for the applicant and Shri G.K.Agarwala, Additional Standing Counsel, for the Respondents and perused the record.
8. The applicant was referred to PMCH, Patna, by the Central Government Health Scheme Dispensary for treatment of his eye ailment. The PMCH referred him for treatment to Shankar Netralaya, Madras, vide letter dated 12.7.87 as at Annexure-A/8. Accordingly, he (the applicant) after obtaining sanction/permission from the Dy. Director, CGHS, Patna as at Annexures-A/14, A/15 & A/16 proceeded for Madras and was operated upon at Shankar Netralaya. He was called for further1 check up and, accordingly, again after obtaining sanction by the Central Government Health Scheme, vide letter dated 20.10.89 and 10.11,89 for attending and examination of treatment he visited the Shankar Netralaya, Madras.
However, it is said that while again sanctioning/permitting treatment at Shankar Netralaya vide letter dated 10.11.89, as at Annexure-A/16, he was not sanctioned for attendant to accompany him. Therefore, he filed OA No. 11/90 before this Tribunal against the denial of attendant to accompany him which was rejected vide order dated 11.10.90.
9. The learned counsel for the applicant contended that the applicant was sanctioned for treatment at Shankar Netralaya, Madras. He was suffering from serious eye ailment and had already been operated upon there on proper recommendation and authorisation. He was a serious heart patient also. Therefore, there was an imperative need for attendant to accompany him to Madras. The denial of attendant is negation of benefits as extended to the applicant-pensioner under the scheme. He further contended that the provisions under the scheme, as at Annexure-A/2, was in verbetim extended to the retired Judges of the Hon'ble Supreme Court and the Hon'ble High Court as at Annexure-A/28.
The Hon'ble Patna High Court had an occasion to interpret the scope of the relevant provisions in CWJC No. 6494 of 1990 for which similar prayer was allowed. We may extract the relevant provisions as contained in Annexure-A/2 as hereunder: "They (petitioner) will be entitled to the facilities available to serving Government employees earning the same emoluments. Continuous treatment at the same level as on the date of retirement could be considered on payment by the pensioners of contribution charged on the last pay drawn." 10. The Hon'ble Supreme Court and High Court's retired Judges were also extended the medical facilities under the Central Government Health Scheme, vide Scheme dated 21.9.77, as at Annexure-A/28, exactly on the aforesaid terms.
11. The Hon'ble Patna High Court in aforesaid CWJC No. 6494 of 1990, while interpreting the scope of aforesaid provision held that the retired Judges of the Hon'ble Supreme Court and Hon'ble High Courts are not to be treated at par with Central Government pensioners rather they are to be treated at par with serving Government employees earning the same emoluments and as such the case of the petitioner cannot be equated with that of the pensioners and, accordingly, allowed the prayer of the petitioner to make good of the travelling allowances and incidental expenses which were incurred by him for his journey to Delhi and back to Patna along with his attendant in connection with his treatment at All India Institute of Medical Sciences, New Delhi.
12. A close reading of the aforesaid provisions under the Heading "contribution" of the scheme as at Annexure-A/2, read with Annexure-A/28, leaves no room for doubt that the pensioners are entitled to the same medical facilities as are available to serving Government servants/employees earning the same emoluments and for continuing treatment at the same level as on the date of retirements on payment of contribution charges on the last pay drawn. No distinction appears to have been made between a serving Government servant and a pensioner provided the contribution by the pensioner is paid on the last pay drawn. Therefore, we have no hesitation in holding that the Central Government pensioners are entitled to the medical facilities as are available to a serving Government employee in term of the scheme referred to above.
13. Learned counsel for the Respondents submitted that the reliefs prayed for by the applicant was earlier rejected by this Tribunal vide order dated 11.10.90 passed in OA No. 11/90, and, therefore, this OA is not maintainable. We gave our anxious consideration to this aspect of the matter. We find that the aforesaid OA-11/90 was decided mainly considering the provisions in Clause (iv) of the O.M. as at Annexure-A/2 which contemplated that the medical facilities under the scheme could be availed of only in the places whereas pensioners card is a registered and no reimbursement could be made when the pensioner have to take medical treatment in places other than those where they are registered. It appears that the aforesaid provisions regarding extension of medical facilities to the pensioners at par with the serving employees were not brought to the notice of the Tribunal. It also appears that this aspect of the matter that the applicant after obtaining sanction of the competent authority under compelling circumstances had to perform journey for treatment with the attendant.
Besides, the subsequent interpretation of the provisions under the scheme by the Apex Court on the touch stone of the provision under Article 21 of the Constitution of India clearly show that the applicant-pensioner is entitled to the reliefs prayed for. Therefore, we are of the opinion that instead of referring matter to be a larger Bench or treating this petition as a Review petition, it would be in the interest of substantial justice to dispose of this O.A. on merit.
Accordingly, the contention of the learned counsel for the Respondents is negatived.
14. The learned counsel for the applicant relied upon two judgments of the Hon'ble Supreme Court in State of Punjab v. Mohinder Singh Chawla and Ors., (1997) 2 SCC page 83 and in Surjeet Singh v. State of Punjab and Ors., AIR 1996 SC 1388, and contended that the applicant is entitled to the claim of T.A. along with attendant for performing journey to the hospital and he (the applicant-pensioner) cannot insist upon to get himself treated at Government recognised hospital.
15. In the case of Mohinder Singh Chawla (supra) the respondent an employee of the State Government of Punjab was a heart patient. Since, specialised treatment of that ailment was not available in the Hospital maintained by the State Government, he was given permission by Directorate and approved by the Medical Board to have treatment outside the State. His case was referred to AIIMS at New Delhi. The question was whether while allowing reimbursement of medical expenses, the room rent paid to the Hospital by him was to be included therein.
16. The State Government pleaded against the inclusion on the ground of being contrary to para (vii) of its Resolution dated 25.1.91. Rejecting that plea and allowing the employee's appeal, the Hon'ble Supreme Court held: "It is now settled law that right to health is integral to the right to life. The Government has a Constitutional obligation to provide health facilities. If the Government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference where the Government servant had undergone such treatment therein it is the duty of the State Government to bear expenditure in regard to Government servants. Expenditure thus, incurred requires to be reimbursed by the State to the employee." 17. In Surjeet Singh case (supra) the Hon'ble Supreme Court allowed the claim of the applicant- employee for reimbursing at the rate of private institution holding that Government cannot insist on him to get himself treated at recognised Government institution and claim rates there. The Hon'ble Supreme Court sharing the view expressed by a Division Bench of the Punjab and Haryana High Court in Sadhu Pal v. State of Punjab through the Secretary, Health and Family Welfare Punjab in CWP No.13493 expressed the view as under: "It is otherwise important to bear in mind that self preservation of one's life is the necessary concomitant of right of life enshringed in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of duty and right to self preservation has a spacies in the right of self defence in criminal law. Centuries ago thinkers of the great land conceived of such right and recognised it. Attention could usefully withdrawn to versus 17, 18, 20 & 22 in Chapter 16 of "Garur Puran".
We feel tempted to refer to versus 17 which says that "without the body how one can obtain the object of human life? Therefore, protecting the body which is the wealth one should perform the deed of merits." 18. Before we part with we would like to point out that the pensioners, in the evening of their lives, need more careful hand of the Welfare State through such beneficial legislation/scheme. The denial of attendant to a pensioner suffering from such serious disease appears to be negation of medical benefit as extended to them on payment of contribution as a serving Government employee. The provision under scheme/order denying the benefit of defraying actual expenditure on travelling with one attendant from the place of residence to the place of the referred hospital appears against Constitutional mandate also as has been interpreted by the Hon'ble Apex Court in the judgment referred to above.
19. In the result, we allow this application and direct the Respondents to issue ex-post facto sanction letter for the treatment of the eye of the applicant, and also, to defray expenses for treatment on submission of bill. The Respondents are further directed to issue ex-post facto sanction for an attendant who accompanied the applicant and to reimburse Railway fare of the applicant and his attendant from Patna to Madras and back. The aforesaid exercise shall be completed within three months from the date of receipt of a copy of the order.