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Judgment
V. Kanagaraj, J.—Petitioner has filed the above writ petition praying to issue a Writ of Certiorarified Mandamus calling for the entire
records leading to the passing of impugned letters on the file of the second respondent herein bearing No.3901/99 and 1256/2000-1 dated
7.2.2000 and 22.3.2000, respectively and quash the same as illegal and consequently direct the respondents herein to sanction the medical
expenses incurred by the petitioner in terms of the orders governing the subject.
The case of the petitioner in brief is as follows:
The petitioner is a retired District Revenue Officer, aged 71 years; that he had undergone the preliminary phase of the special treatment for calculus
Cholecystitics at Sundaram Medical Foundation Hospital at Chennai, in 1996 for which the third respondent sanctioned a sum of Rs.1181/-
towards reimbursement of the medical expenses; that once again the petitioner had to get himself admitted in the said Hospital on 12.7.1998; that
the petitioner underwent a special surgery of ''Laproscopic Cholcystectomy'' on 29.7.1998 and for this, the petitioner had to incur a sum of
Rs.23,951.30 towards medical expenses; that the petitioner preferred his claim in this regard before the third respondent through the fourth
respondent on 17.8.1998; that the fourth respondent rejected his claim stating that the Hospital where he took treatment, does not find place in the
list drawn up by the Government.
The petitioner would further submit that upto the age of 42 years, as a Government servant, he has not undergone any surgery or claimed any
medical reimbursement for special treatment; that even after treatment in 1987 he had not undergone any surgery excepting the present one; that
aggrieved by the rejection of his claim by the fourth respondent, the petitioner submitted a petition to the Government of Tamilnadu Finance
(Pension) Department on 6.9.1999 and sought for the sanction of reimbursement of the medical expenses; that as this was negatived by the second
respondent on 6.2.2000, the petitioner submitted an appeal to the Chief Minister of Tamilnadu by petition dated 16.2.2000, by furnishing all
details; that this petition was also rejected by the second respondent on 20-3-2000 on the same grounds as stated in the earlier letter dated
7.2.2000; that the petitioner came to know from the impugned proceedings that he cannot enjoy the benefits of the Tamil Nadu Government
Pensioners Health Fund and therefore, left with no option, has come to this Court with the above writ petition for the prayer extracted supra.
No counter has been filed on the part of the respondents.
During arguments, the learned counsel appearing on behalf of the petitioner would cite from the copy of G.O. Ms. No.562, dated 11.7.1995
Finance (Pension) Department (Government of Tamil Nadu) on the subject of medical aid Special Surgery/Treatment-Assistance to Pensioners-
Constitution of Tamil Nadu Government Pensioner''s Health - Orders issued in Annexure-II, wherein it has introduced a Scheme to provide
financial assistance to the pensioners for undergoing the special treatments/surgeries, but also constituted a fund called the Tamil Nadu Government
Pensioners'' Health Fund to be utilised for pensioners who have to undergo specialised major surgery/ treatment to private hospitals irrespective of
whether such facility is available in Government hospital or not, each pensioner contributing a sum of Rs.5/= per annum to the fund and the
Government getting this fund by its contributing Rs.5/= per pensioner.
The learned counsel would further read out the relevant passages from the guidelines of the Government of Tamil Nadu Pensioners'' Health
Fund, wherein it is contemplated that the Scheme shall apply to all the pensioners who draw pension....In addition, additional amount required to
meet the expenditure for assistance from the fund will be provided by the Government....However, the Director of Pension is delegated with
powers to sanction assistance for other treatments also. The Director of Pension is permitted to release assistance for treatments undergone in
other private hospitals also after satisfying the genuineness of the treatment.
The learned counsel would also cite two judgments, the first one delivered in C.W.P. No.509 of 1998 in the case of Narendra Pal Sing Vs.
Union of India, decided on 29.4.1999 by a single Judge of the Delhi High Court, following the judgment of the Apex Court reported in State of
Punjab and others Vs. Mohinder Singh Chawala, etc., wherein it is held as follows :
It is always open for the Govt. to grant ex-post-facto sanction (Reference to the supreme corut judgement of Surjit Singh Vs. State of Punjab and
Others, ordered to settle the claim as per the rates admissible in ''Excorts Hospital''.
Law is therefore well settled that right to health is an integral part of life and Govt. has constitutional obligation to provide health facilities to its
employees or retired employees and in case employee requires specialised treatment in an approved hospital, it is the duty of Govt. to bear or
reimburse the expenses. He had to be operated in an emergency and in case he had waited for prior sanction, he might not have survived. It is the
duty of Govt. to grant ex-post-facto sanction.
Other cases referred to : State of Punjab and others Vs. Mohinder Singh Chawala, etc., .
On the contrary, the learned Government Advocate would submit that the orders of the Court cited by the petitioner are only suggestive and
recommendatory in nature but also the held propositions, and therefore, so far as the facts of the petition are concerned, they are not applicable
since the petitioner deviating from the guidelines especially as found in Annexure-III wherein a list of 21 hospitals have been named and the hospital
in which the petitioner is said to have availed the medical assistance is not one, and therefore, the petitioner is not entitled to the assistance for the
treatment said to have been undergone. On such grounds, the learned Government Advocate would pray to dismiss the writ petition.
In consideration of the pleadings by parties, having regard to the materials placed on record and upon hearing the learned counsel for both, what
comes to be known is that the petitioner, who is a senior citizen claiming the financial assistance provided for under the Scheme of the Government
of Tamil Nadu created by G.O. Ms.No.562, Finance (Pension) Department dated 11.7.1995, has come forward to file this writ petition praying to
call for the entire records relating to the letters dated 7.2.2000 and 22.3.2000 respectively and quash the same as illegal by issue of a writ of
certiorarified mandamus and direct the respondents to reimburse to the petitioner the eligible amount under the Tamil Nadu Government
Pensioners Health Fund as prayed for in his representations dated 06.9.1999 and 16.02.2000 respectively.
From the impugned communications dated 7.2.2000 and 22.3.2000 respectively, the Government of Tamil Nadu have rejected the request of
the petitioner for the said medical assistance on ground that the hospital, viz., Sundaram Medical Foundation in which he had undergone surgery is
not included in the accredited list of hospitals under Tamilnadu Pensioner''s Health Fund Scheme and further even the second time citing the same
order, assigning the same reasons in the latter one, his plea had been rejected, and therefore, the petitioner prays for a direction to be issued to the
respondent to reimburse the petitioner''s eligibility amount under the Tamil Nadu Government Pensioner''s Health Fund.
The strong objection raised on the part of the Government of Tamil Nadu for providing assistance under the said Scheme is that he had not
taken the treatment in any one of the accredited institutions. However, as per Annexure-I whereunder guidelines have been provided for the fund,
it is glaringly seen that the ''Director of Pension is permitted to release assistance for treatments undergone in other private hospitals also after
satisfying the genuineness of the treatment.'' This discretionary power has been conferred on the Director of pension, in spite of having specified in
the list the types of surgeries in Annexure-II and the accredited institutions in Annexure-III. Therefore, no mention need be necessary that in spite
of those which are mentioned in Annexure-III, the Director of Pension i.e. the third respondent herein is empowered with such powers by clause 3
of Annexure-I permitting him to release assistance for treatments undergone in other private hospitals also on satisfaction of the genuineness of the
treatment.
So far as the case in hand is concerned, the genuineness of the treatment is not at all in dispute. The law has also permitted the third respondent
to release assistance for treatments undergone in other private hospitals also (other than those specified under Annexure-III). Therefore, there is
absolutely no impediment on the part of the respondents to sanction the medical assistance sought for by the petitioner, especially the third
respondent in exercise of his discretion, which needs to be exercised in the warranting circumstances of the case, for which purpose alone the
authority is clothed with such powers by the scheme which is binding on the third respondent within the meaning and import of the language
employed in the extracted clause of the Scheme List supra. Wherever the authority is required to make use of the discretionary powers and the
said authority does not exercise the same in the manner required, it would amount to negligence. There cannot be a more fitting case than the one in
hand wherein the third respondent could exercise his discretion in the manner required by the Scheme Rules and the non-exercise would only mean
shirking his responsibility. For all the above discussions held, it has become necessary to allow the writ petition to its prayers, directing the
respondents to reimburse the said amount of Rs.23,951.30 under the Tamil Nadu Government Pensioner''s Health Fund.