Judgment:
Swatanter Kumar, J.
1. In this petition under Articles 226/227 of the Constitution of India, the petitioner prays for issuance of a writ, order or direction for quashing the order passed by the Director, Health and Family Welfare, Punjab, dated 19.4.1999, Annexure P/6 to the petition. Vide this order, the petitioner was denied her claim for medical reimbursement for the heart surgery undergone by her husband at B.R.S. Heart Institute and Research Centre, Kot Billa, Panchkula, Haryana.
2. The facts giving rise to the petition are; that Shri Jagdish Sharma, who is husband of the petitioner, retired from the service of the Central Government on 31st March, 1998. The husband of the petitioner was getting pension of Rs. 3, 105/- per month. He had been suffering from heart ailment and had suffered two heart attacks in the year 1978 and 1982. The husband of the petitioner suffered third heart attack on 2nd January, 1997. He was subjected to different medical tests from time to time. Angiography was conducted on him on 23rd April, 1998. Considering the reports of various tests, including Angiography, the doctor suggested the husband of the petitioner to undergo heart bye-pass surgery. For that purpose, he was admitted to BRS Heart Institute and Research Centre on 23rd April, 1998 and was discharged on 13th May, 1998, after successful surgery. Ex. post-facto sanction was obtained from Health Department, Punjab on 2nd September, 1998 and the petitioner moved an application raising her claim for medical reimbursement on 28.11.1998. She contended that her husband was physically and economically dependent upon her and she being working as Principal of Government Senior Secondary School, Rajpura Town, Patiala is entitled to the claimed amount. This claim of the petitioner was forwarded by the Department of District Education Officer to the Director, Public Instruction(s) on 17th December, 1998. The bills were sent for verification by the Director, Public Instructions(s) Punjab and a query was also raised as to how much amount could be reimbursed at the rate of a All India Institute of Medical Science. However, the respondent No. 3, vide its letter dated 19th April, 1999 informed the Director, Department of Education stating that the claim of the petitioner for medical reimbursement has'been rejected as her husband had retired from the office of Post Master General and was not dependent upon her. This compelled the petitioner to file the present writ petition.
3. Upon notice, respondents filed their reply. Contested the claim of the petitioner. In paragraph 5 of the written statement filed on behalf of respondents No. 1 and 2 following stand has been taken.
'5. That the contents of this para are admitted. But it is submitted that as per Government Instructions dated 3.1.1994 the family members of a Government Employee whose monthly income is more than Rs. 500/- is not considered as dependent on Government Employee for reimbursement purpose. As per certificate issued by the Senior Post Master, Ambala, Shri Jagdish Sharma getting his monthly pension of Rs. 3,105/- therefore, he is not entitled to get medical reimbursement of her husband.'
4. As is clear from the above averments, the claim of the petitioner has been declined for a simple reason that her husband is not dependent upon her and under the relevant rules, reimbursement of such claim is not permissible. The respondents have annexed Annexure R/l/T to their reply, copy of the instructions: issued by the Government of Punjab, Health and Family Welfare Department dated 3rd January, 1994. It has been stated in these instructions that if the earning of the spouse other than the concerned government employee is Rs. 250/- then such spouse can be considered as a dependent upon him. If the income is in excess of Rs. 250/- then the person cannot be treated as a dependent.
5. Learned counsel for the petitioner relied upon the judgment of the Hon'ble Supreme Court in the case of State of Madhya Pradesh and Ors. v. M.P. Ojha and Anr., A.I.R. 1998 Supreme Court 659 to contend that the petitioner is entitled to medical reimbursement. In this case, the Hon'ble Apex Court was concerned with M.P. Civil Service (Medical Attendance) Rules, 1958.
6. During the course of hearing learned counsel appearing for the State placed reliance upon the aforestated instructions and the relevant rules to, argue that the petitioner was not entitled to claim medical reimbursement, Section C, which relates to ENTITLEMENT TO FAMILY MEMBERS in regard to medical reimbursement, defines the term 'Family' which admittedly includes husband in case of a female government servant, who is residing with her and is dependent upon her. Reference was made to Sub-rule 3 of Rule 52 to indicate who would be dependent on the employee. Said Clause 3 reads as under:-
'(3) The following may also be deemed to be dependent on the employees:-(i) The spouse of Punjab Government Employee working in an institution other than Government but not allowed free medical facilities/treatment/ reimbursement expenses by the employing institution, whose income from all sources does not exceed Rs. 250/- p.m. and also ordinarily resides with him/her, on an undertaking in the form of an affidavit to the effect that his wife/husband is not claiming reimbursement from the institution she/he is serving in and that according to the terms and conditions of the appointment, she/he is not entitled to free medical facilities.'
7. The above Sub-rule (3), thus, applies only to person whose spouse is the government employee, at the relevant point of time and that is not the case here because admittedly husband of the petitioner has retired from service. The instructions, which the respondents have relied upon have been annexed to the reply as Annexure R/1/T. Obviously these instructions are not in furtherance to or based upon any statutory rules. The subject of the instructions intends to provide clarification in the light of the Punjab Service (Medical Attendants) Rules, 1940. These instructions postulate to restrict the income of the dependent spouse not more than 250/- rupees per month and if the spouse is suffering from serious disease than also she/he can be treated as dependent upon the government employee.
8. I have already noticed that there is no statutory backing to this letter and secondly these instructions to say the least are ambiguous, vague and do not establish any nexus between the object sought to be achieved in furtherance to the rules and the letter in question. Dependency cannot be determined merely on the basis of financial calculation. It has to be social and in terms of health as well. These are the few components which should be taken into consideration for determining the dependency of a family member of the government employee so far he/she falls within the definition of the family under the relevant rules.
9. The importance of public health in a democratic society was accepted by the Hon'ble Apex Court in the case of State of Punjab and Ors. v. Ram Lubhaya Bagga, etc. etc., J.T. 1998(2) S.C. 136, where the Court accepted protection to health to include care for health and being fully protected under Article 21 of the Constitution of India which casts an obligation upon the State to provide such protection under Article 47 of the Constitution of India and held as under:-
'The right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47, it is for the State to secure health to its citizen as its primary duty. No doubt Government is rendering this obligation by opening Government hospitals and health centres, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, reduce the queue of waiting lists, and it has to provide all facilities for which an employee looks for at another hospital.
Since it is one of the most sacrosanct and valuable rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of this welfare State looks towards the State for it to perform its this obligation with top priority including by way of allocation of sufficient funds. This in turn will not only secure the right of its citizen to the best of their satisfaction but in turn will benefit the State in achieving its social, political and economical goal. For every return there has to be investment, investment needs resources and finances. So even to protect this sacrosanct right finances are an inherent requirement. Harnessing such resources needs top priority.'
10. The controversy in the present petition does not require any detailed discussion, as it squarely has been answered by the Hon'ble Court. The material controversy is no more re-integra and is answered in favour of the petitioner by the Hon'ble Supreme Court in M.P. Ojha's case (supra). In this case, father of a government servant, who had retired from government service, aged about 70 years was sick and treatment and had raised the claim for reimbursement under this relevant rules. Similar plea was taken that father was getting pension of Rs. 414/- per month and thus he was not dependent Upon the government employee. Repelling this contention, the Hon'ble Supreme Court held as under:-
'The expression 'wholly dependent' has to be understood in the context in which it is used keeping in view the object of the particular Rules where it is contained. Further, the expression 'wholly dependent' as appearing in the definition of 'family' as given in Medical Rules cannot be confined to mere financial dependence. Ordinarily, dependence means financial dependence but for a member of family it would mean other support, may by physical, as well. To be 'wholly dependent' would, therefore include both financial and physical dependence. If support required is physical and a member of the family is otherwise financially sound he may not necessarily be wholly dependent. Court cannot curtail meaning of 'wholly dependent' by reading into this the definition as given in Rule 8 framed under Rule 9(32).
In instant case the father of Government Servant who himself has retired as Government Servant was 70 years of age and was sick and it could not be said that he was not wholly dependent on his son. Son has to look after him in his old age. Even otherwise, by getting a pension of Rs. 414/- per month which by any standard is a paltry amount it could not be said that the father was not 'wholly dependent' on his son. That the father had a separate capacity of being a retired Government servant is immaterial if his case falls within the Medical Rules being a member of the family of his son and wholly dependent on him. Therefore, under Rule 2(d) of M.P. Medical Rules the father is member of family of his son and is wholly dependent on him and son was thus fully entitled to reimbursement for expenses incurred on treatment of his father and other travelling expenses.'
11. In the present case, there is no dispute that the husband of the petitioner would squarely fall in the definition of the 'family' under the relevant rules. It is also not disputed that he is getting some meagre pension from the government. The expression 'wholly dependent' would cover the husband of the petitioner as per the dictum of the Hon'ble Supreme Court.
12. The law laid down by the Hon'ble Supreme Court of India is law of the land and is binding on all Courts. The rules under interpretation in M.P. Ojha's case (supra) were more or less similar to the rules in question involved in the present case. There appears to be no plausible reasoning behind Annexure R/l/T, which, as already noticed, is more than ambiguous. The protection granted to a government employee under the constitutional provisions and the rules, cannot be taken away by virtue of issuing such kind of instructions without, there being an appropriate legislation or delegated legislative powers vested in the authorities concerned.
13. For the reasons aforestated, I have no hesitation in allowing this writ petition, more particularly in view of the judgment of the Hon'ble Supreme Court of India in M.P. Ojha's case (supra).
14. Resultantly, writ petition is allowed. The respondents herein are directed to consider the case of the petitioner for reimbursement in accordance with rule and make payment thereupon without any unnecessary delay. However, there shall be no order as to costs.