J. S. Bedi v. Union of India and Anr.

14. For the sake of clarity paragraph nos. 14 to 16 of the counter affidavit are extracted as under:- “14. In the petitioner's case it is clear from the clinical records of the oncologist at Medanta that the patient had been counselled regarding the treatment options available and that she did not wish to take cetuximab which was the recommended treatment. Further he has stated that, in response to an enquiry by the petitioner, he was informed about DCT and also told that the same is not an approved therapy for head and neck cancer. Similarly as stated by the petitioner, he took the opinion of the medical oncologist at Safdarjung too, who also has at no point recommended the patient to undergo this treatment. Copy of the prescription of the oncologist at Medanta is annexed herewith at

ANNEXURE C[4].

15. Hence, it is evident that the petitioner by his own choice has electively opted for the patient to undergo this experimental treatment. The treatment evidently doesn't satisfy the criteria for full reimbursement as laid down in the OM dated 6.6.18. It was certainly not a case of emergent treatment and the treating medical oncologist has not recommended it either. It is humbly submitted that clinical criteria are ·there to determine as to what constitutes a medical emergency. The opinion of committees composed of medical oncologists dealing on a daily basis ·with such cases has to be relied upon. They are well versed in their fields and certainly qualified to judge whether the patient's condition qualified as a medical emergency. That said, the intent here is not to undermine the severity of the patient's disease or her suffering. Advanced cancer can. be extremely debilitating, painful and harrowing for both the patient and the family. Under CGHS norms cancer patients are always granted special relaxation and priority as should be the case. However, in this case 8 different medical oncologists from tertiary care centres of Delhi including AIIMS as well as the Army Research and referral hospital. have unanimously and unequivocally opined that· DCT cannot be justified in this case. The same has been communicated to the petitioner. Copies of the minutes of the various TSC and HPC meetings considering the petitioner's cases are annexed herewith at Annexure C[5].

16. That the granted, in the petitioner's case, considering the patient's advanced malignancy and terminal illness:, they wished to try any form of treatment available, but CGHS should not be held liable for reimbursing unproven and unapproved experimental therapies that patients may choose to undergo of their own volition. Not only would this be an unjustifiable use of taxpayer money but would also set a very bad precedent wherein we would be obliged to consider reimbursements for all manner of such claims. Other pending balance payments in MRC 1 pertain to charges amounting to approximately Rs.38000 for palliative laser ablation of tumour at Parakh Hospital, Mumbai which were over and above CGHS rates and Rs. 27508 for expenses on air tickets for the patient. and attendants from Delhi to Mumbai and back. The bill for laser ablation has been settled as per guidelines with the unlisted procedure reimbursed in full and other charges restricted to CGHS rates as per norm. This treatment was planned and elective, hence does not fulfil criteria for full reimbursement as per CGHS guidelines. Similarly bills for the air tickets were regretted since air tickets are not reimbursable under CGHS. The clause regarding requests for reimbursement of air fare, which are to be considered by the HPC, is for reimbursement of emergency air lift of patients by air ambulance, requirement for which is to be certified by the treating doctor. MRC 2; was submitted for expenses which were incurred by the petitioner while the patient was admitted at an empanelled private hospital for 6 · months. This included charges on nursing, toiletries, physiotherapy and diet supplements not routinely covered under CGHS.”

15. The Supreme Court in the case of Shiva Kant Jha has held that the government employee during his/ her lifetime or after his/ her retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. Paragraph nos.17 and 18 of the said decision are extracted as under:- “17) 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 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 of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court.

18) 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 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.”

16. The foundational principle laid down by the Supreme Court in Shiva Kant Jha (Supra) was affirmed and applied in Basant Dabas v. Govt of India & Ors.[2] holding that, admission of a CGHS beneficiary to a private hospital is not, by itself, any ground to refuse reimbursement. In Union of

India v. Shiv Ram Singh Naulakha[3] this Court similarly directed full reimbursement. On a similar line of reasoning, in Rajkumar v. Addl. Chief Sec. to Govt. & Ors.4; Union of India v. Joginder Singh[5]; and GP Capt. Suresh Khanna v. Union of India[6], the Court directed full reimbursement, holding that genuine emergency medical treatment cannot be penalised on the grounds of empanelment or rate-capping.

17. Additionally, in Jagir Kaur v. Union of India[7] a Division Bench of this Court, while setting aside the order of Central Administrative Tribunal, directed full reimbursement of the outstanding medical expenses along with the interest. Holding that in extraordinary situations such as COVID pandemic, the only test must be whether medical treatment was actually availed of, and once that is established in the affirmative, reimbursement must be full. As denying it on the ground of capping circulars addressed to hospitals would be unjust.

18. Learned counsel appearing on behalf of the petitioner places reliance on the abovementioned line of authority and on Chief Sec. Govt. of NCT of Delhi v. Anurag Manocha[8], which reveals a consistent approach flowing from Shiva Kant Jha, holding that a CGHS or analogous scheme beneficiary who receives genuine emergency medical treatment at a nonempanelled or private facility is entitled to full reimbursement of the amount actually incurred. Highlighting that the law on the question of medical reimbursement for treatment undertaken at non-empanelled or private hospitals is no longer res integra.

19. In the instant case, Respondent‟s stand over DCT being „experimental‟ and „not approved‟ ought to be rejected as per the Office Memorandum dated 20.02.2009, issued by the Ministry of Health and Family Welfare, which expressly provides that:- “3(2)(b)… a checklist for consideration of requests for reimbursements in excess of approved rates may include, the treatment obtained in a private non-empanelled hospital under emergency for treatment of advanced malignancy”

20. The petitioner‟s case falls squarely within the text of the Respondents‟ own circular. When the State formulates a beneficial circular extending relief in cases of advanced malignancy, and then rejects a claim that falls precisely within its terms, such action is self-contradictory and prima facie arbitrary.

21. The entire reasoning of the Respondents proceeds on the factual premise that the patient „electively‟ chose DCT by declining Cetuximab. The patient was suffering from an advanced malignancy with the tumour blocking her air passage, placing her in imminent risk of asphyxiation. In such life-threatening circumstances, the decision as to the appropriate course of treatment is pre-eminently a medical decision, to be made by qualified physicians. The Supreme Court in Shiva Kant Jha held that:

22. A retrospective assessment by a committee after the treatment, that the patient should have undergone a different treatment, cannot substitute for a clinical judgment of the treating doctors who were present at the bedside and responded to a medical emergency. To hold otherwise would be to require patients and their families, in the throes of a life-threatening emergency, to second-guess the prescriptions with an eye to future administrative acceptability, which would amount to a standard that is neither humane nor legally sound.

23. The Respondents contention that the decision of the Supreme Court in Shiva Kant Jha is confined to the facts of that case on account of para 15 is misconceived.

24. The above-produced para is merely a direction restricting the operative relief to the parties before the Court, and cannot be read as a judicial declaration curtailing the precedential value of the legal principles enunciated therein. Phraseology does not, and cannot, efface the ratio that emerges from the reasoning preceding such directions. To treat a restriction on the relief as a restriction on the ratio is to conflate two jurisprudentially distinct concepts and to render the substantive findings of the Court mere surplusage.

25. For all the above-mentioned reasons, the Petitioner is entitled for reimbursement of the outstanding balance amount of Rs.3,14,348/- (comprising Rs.2,65,342/- towards MRC-1 and Rs.49,000/- towards MRC- 2). The payment of the underlying medical expenses has already been made by the petitioner out of his own pocket, and all supporting bills and records have already been placed before the Respondents

26. Let the matter be considered by the appropriate Committee within a period of three months from the date of receipt of copy of the order passed today.

27. With the aforesaid observations, the instant petition stands disposed of.

JUDGE APRIL 29, 2026/Nc/NK