Bombay High Court
Anirudh Prataprai Nansi vs The Union Of India Thr The Additional … on 6 June, 2025
Author: G.S. Kulkarni
Bench: G. S. Kulkarni
2025:BHC-AS:22550-DB
WP7546_2022.DOC
Vidya Amin
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 7546 OF 2022
Anirudh Prataprai Nansi, a voluntary retired ... Petitioner
Central Government employee (Pensioner)
Andheri (West), Mumbai.
Versus
1. The Union of India, through the AS & DG,
Ministry of Health & Family Welfare, New Delhi
2. Additional Secretary and Director General
Ministry of Health & Family Welfare,
Central Government Health Scheme, New Delhi
3. Director, CGHS, New Delhi
4. Additional Director, CGHS(HQ), New Delhi
5. Additional Director, CGHS,
New Marine Lines, Mumbai - 400 020.
6. Additional Director (CGHS), R & H,
CGHS Bhawan, New Delhi - 110 011.
7. High Power Committee,
Nirman Bhavan, Newl Delhi - 110 011 ...Respondents
Mr. Prakash Shah, Senior Advocate a/w. Mr. Anil Balani, Mr. Durgaprasad
Poojari, Mr. Jas Sanghavi, Mr. Priyasha Pawar. Mr. Vikas Poojary i/b. PDS
Legal for the petitioner.
Mr. Y.R. Sharma a/w. Mr. Vinit Jain, Mr. Ashok Varma for the respondents.
_______________________
CORAM: G. S. KULKARNI &
ADVAIT M. SETHNA, JJ.
RESERVED ON 24 January 2025
PRONOUNCED ON 6 June 2025
_______________________
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Judgment: (Per G.S. Kulkarni, J.)
1. Rule, made returnable forthwith. Respondents waive service. By consent of
the parties, heard finally.
Preface
2. The case is a peculiar case, namely, of a dispute arising from the
reimbursement of expenditure incurred by the petitioner on a serious medical
treatment of a “heart transplant”. This medical condition is certainly not a routine
affair for the hospitals much less for the Central Government hospitals or those
under the Central Government Health Scheme.
3. The petitioner is a senior citizen. He is a pensioner, who obtained a voluntary
retirement from the post of Assistant Commissioner, Central Excise and Customs,
Pune. This is the second occasion for the petitioner to approach this Court on the
cause of action as pursued in this petition.
4. The issue which arises for consideration is whether in the inescapable and
pressing situation the petitioner, having undergone a heart transplant at a private
hospital, could the petitioner be denied and/or not given full reimbursement of the
medical expenses incurred by him for such major treatment. The question is also as
to whether the rigors of normal rule of medical reimbursement should make a way
for the case to be considered as a special case, for grant of full reimbursement. This,
more particularly, as a heart transplant surgery is not walk-in category of surgery. It
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requires availability of the organ and the specialized transplant facilities and a team of
experts to perform the surgery. This is certainly not available or feasible in many
hospitals. Also a retired Central Government servant whether can be discouraged
and/or forego and/or not have a heart transplant merely because he is likely to face
financial difficulties for non-reimbursement of the expenditure which would be
incurred, is also a question which needs to be pondered. More particularly
considering such situations on the touchstone of the Constitutional guarantee of
right to life, which includes right to health and certainly right to avail of treatment,
necessary to save one’s life.
5. On such preface, the substantive prayers as made in the petition need to be
noted, which reads thus:
A. that this Hon’ble Court be pleased to issue a Writ of Mandamus or a Writ in
the nature of Mandamus or any other Writ, order or direction under Article 226 of
the Constitution of India directing the Respondents by themselves, their officers and
subordinates their officers and subordinates to forthwith sanction and grant
reimbursement of Rs. 22,08,440/ with interest thereon at the rate of 9% per cent per
annum;
B. that this Hon’ble Court be pleased to issue a writ of Certiorari or a Writ in the
nature of Certiorari or any other appropriate Writ or order or direction under Article
226 of the Constitution of India calling upon the records of the Petitioner’s case and
after going into the legality and validity thereof be pleased to quash and set aside:
i. purported rejection the claim of the Petitioner for full reimbursement of expenses
incurred by the Petitioner towards heart transplant by the Respondent No. 5 vide
her letter dated 13.04.2022 andii. Office Memorandum No. S.110011/23/2009-CGHS D.II/Hospital Cell (Part I)
dated 28.08.2011 read with CGHS Mumbai Rates for Hospitals – 2010 (Updated on
14th May, 2021);
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FACTS
6. The relevant facts are required to be noted:
The petitioner voluntarily retired from Central Excise and Customs, Pune, as
an Assistant Commissioner in March 2008 and is receiving pension. He is based in
Mumbai.
7. On 28 August 2011, Government of India, Ministry of Health and Family
Welfare (for short “MOHFW”) notified a fresh empanelment of private hospitals and
a corrected list of package rates applicable for empanelled hospitals under the Central
Government Health Scheme (for short “CGHS”), Mumbai. The rates were
subsequently updated on 14 May 2021. Thereafter, on 16 January 2013, MOHFW
published guidelines and ceiling rates for liver transplant surgery for CGHS/Central
Service (Medical Attendance) beneficiaries. Further by Office Memorandum dated
18 February 2015, rates of treatment procedures under CGHS were revised.
8. The petitioner was suffering from Cardiomyopathy since 2009. It is his case
that on 3 October 2019, upon a significant deterioration in the Left Ventricle
Ejaculation Function (LVEF), which declined to 12-15%, a team of doctors
associated with Dr. Anvay Mulay, Heart Transplant Surgeon, advised the petitioner
to undergo a heart transplant. The petitioner contends that, at the relevant time,
neither Government Hospitals nor the CGHS-empanelled Super Speciality Hospital,
namely Wockhardt Hospital situated at Mumbai Central, was performing heart
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transplant surgeries.
9. Given the grave and critical nature of the petitioner’s medical condition, and
the lack of any CGHS empanelled hospitals having necessary license, approvals and
expertise, the petitioner had no alternative, but to avail treatment at Sir H. N.
Reliance Foundation Hospital. On 26 November 2020, Dr. P. J. Nathani, Professor
and Head of Cardiology at Lokmanya Tilak Municipal Medical College and General
Hospital, Mumbai, also opined and recommended cardiac (heart) transplantation to
the petitioner as the necessary course of treatment. He was admitted at the H.N.
Reliance Foundation hospital for a pre-transplant investigation known as “work-up”.
10. In such circumstances, the petitioner addressed a letter dated 3 December
2020 to respondent no. 5 – Additional Director, CGHS Mumbai, recording that an
estimate of Rs. 25,00,000/- was received by him towards the cost of heart transplant
and requested a due consideration for such medical reimbursement. On the even
date, the Chief Medical Officer Incharge, CGHS Mumbai, addressed a letter to the
Medical Superintendent/Director, Empanelled or Non-Empanelled Hospital,
providing the petitioner’s details, stating that the petitioner was permitted to undergo
the Indoor/OPD treatment. On such letter, an endorsement was made that treatment
at a non-empanelled hospital could only be reimbursed at CGHS rates and the
difference in cost would have to be borne by the petitioner. The endorsement reads
thus:
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WP7546_2022.DOC“if treatment availed from Non-Empanelled hospital, reimbursement will be at
CGHS rates and excess amount will be borne by the patient.”
11. Thereafter, considering the medical condition of the petitioner, on availability
of a donor with a compatible heart, the petitioner successfully underwent heart
transplant surgery at Sir H. N. Reliance Hospital on 8 December 2020. He was
discharged from the hospital on 29 December 2020, expenditure for the heart
transplant surgery as incurred by the petitioner was Rs. 29,96,020.35/- as clear from
the bill issued by the hospital.
12. On 6 January 2021, as advised the petitioner addressed a letter to respondent
no. 2 – Director General, CGHS New Delhi, requesting that higher CGHS rate for
heart transplant surgeries fixed in the years 2010/2014 for other metropolitan cities at
Rs. 3,17,400/- be made applicable to his case, in lieu of the rate of Rs. 79,000/-
applicable to the beneficiaries in Mumbai under the 2010 CGHS notification.
Pursuant thereto, on 7 January 2021, the petitioner submitted to the Wellness
Centre, Oshiwara, Mumbai, a Medical Reimbursement Claim (MRC) along with the
requisite documents, under cover of his letter dated 6 January 2021. After
rectification of deficiencies, such claim was forwarded to CGHS Mumbai on 2 March
2021.
13. In the meantime, respondent no. 4 – Additional Director General, CGHS
New Delhi, addressed a letter dated 27 January 2021 to respondent no. 5, seeking
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clarification regarding CGHS rates applicable at Mumbai for heart transplant for the
years 2002 and 2007. In response thereto, respondent no. 5 by his letter dated 3
March 2021 provided comparative rates of different cities such as CGHS Pune,
CGHS Delhi, and AIIMS, stating that the petitioner had undergone a heart
transplant surgery at H. N. Reliance Hospital, and the said hospital being a non-
empanelled hospital, reimbursement can only be done as per ‘CGHS Mumbai 2010
rate list’, which was an amount of Rs. 69,000/-. However, in light of the significant
disparity in the approved rates between Mumbai and other metropolitan cities,
respondent no. 5 sought guidance from respondent no. 4 as to whether
reimbursement could be considered at the rates applicable to the nearest CGHS
city/Delhi rates.
14. The petitioner contends that vide letter dated 8 March 2021, the respondent
no. 4 directed respondent no. 5 to grant reimbursement of the petitioner’s claim as
per existing CGHS rates for Mumbai, in fulfillment of conditions of Heart
Transplant Surgery. Accordingly, the Medical Reimbursement Claim was entered in
the system by CGHS, Mumbai on 30 March 2021.
15. To further his efforts to avail reimbursement of the medical expenditure, the
petitioner filed an application dated 18 May 2021 under the Right to Information
Act (RTI) seeking information regarding the expected timelines for disposal of
reimbursement claim. The Central Public Information Officer, CGHS Mumbai
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replied to the said RTI Application on 14 June 2021 stating that cases not requiring
special approval should be settled within 30 days of submission of the medical claim
at the CGHS Wellness Centre.
16. On such backdrop, the petitioner again made a representation dated 30 June
2021 to respondent no. 5 requesting that the petitioner’s application for
reimbursement of expenditure as incurred on petitioner’s heart transplant be
considered as a “special circumstance” and be placed before the High Power
Committee (for short “HPC”). The petitioner further requested that the entire
amount of Rs. 23,69,245/- (after deducting some amounts received) as incurred by
him for such surgery be reimbursed in accordance with the Office Memorandum
dated 6 June 2018. In the interregnum, the petitioner received a response to his RTI
application from the Central Public Information Officer, Mumbai, dated 8 June 2021
informing the petitioner that the Wockhardt Hospital was issued a license to perform
heart transplants on 13 April 2020.
17. The petitioner in an effort to avail of the information on availability of heart
transplant facilities in the various hospitals being recognised by the CGHS, addressed
multiple emails from the period August to September 2021. An email was also
addressed to the CEO of Wockhardt Hospital, inquiring whether heart transplants
were performed at this hospital, however, no response was received. Thereafter, on 14
August 2021, the petitioner addressed a letter to respondent no. 5, seeking an
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amendment to the request made by him in his representation dated 30 June 2021.
The petitioner contends that accordingly he submitted additional representation
dated 28 August 2021 alongwith with supporting materials/evidences on 12
September 2021, to respondent no. 5, which included a copy of the RTI reply
received by the petitioner from the EHS (Policy) Section, MOHFW, New Delhi,
dated 11 August 2021, which clarified that no instructions were issued requiring the
High Power Committee claims to be put up to the Non-HPC Committee before
being submitted to the HPC.
18. The petitioner contends that the Chief Medical Officer Incharge, CGHS
Mumbai by its email dated 21 September 2021, informed the petitioner of sanction
of an amount of Rs. 1,60,805/- being approved towards the petitioner’s claim, and
forwarded the petitioner’s case for reimbursement to Technical Standing Committee,
Delhi on 17 September 2021. On the even day, petitioner submitted a letter to
respondent no. 4 referring to his revised claim amount of Rs. 22,08,440/-.
19. The petitioner contends that numerous correspondences were exchanged
between the petitioner and the CGHS Mumbai, wherein the petitioner repeatedly
requested that his communications be forwarded to the Additional Director, CGHS
New Delhi / respondent no. 4. Also, in and around October 2021, the petitioner
addressed letters to respondent no. 4 forwarding medical certificates issued by Dr.
Anvay Mulay (Cardiovascular and Thoracic & Heart Transplant Surgeon), Dr. Talha
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Meeran (Cardiologist), and Dr. Yash Lokhandwala (DM, Cardiologist), all of whom
opined that heart transplantation is performed only under special circumstances, and
not as a routine procedure.
20. On such backdrop, the petitioner filed application under the RTI Act dated
29 November 2021 with the Central Public Information Officer, seeking the status
of the petitioner’s reimbursement claim. In response to which, on 15 December
2021, the Central Public Information Officer provided copies of the relevant notings,
including a letter dated 30 November 2021 on respondent No.4, rejecting the
petitioner’s claim for full reimbursement. The said letter is required to be noted,
which reads thus:
“F. No. 12011/02/2021-CGHS III
Government of India
Ministry of Health & Family Welfare
Directorate General of CGHS
CGHS IIINirman Bhavan, New Delhi
Dated: /12/2021To,
The Additional Director
Central Govt. Health Scheme
Old CGO Building, South Wing,
Ground Floor, 101, Maharashi Karve Road,
New Marine Lines, Mumbai – 400020.
Sub: Heart transplant surgery of Mr. Anirudh Prataprai Nansi, CGHS Card No.
6705885 for full reimbursement under relaxation of rules – reg.
Sir,
I am to refer to your letter No F No 4(IV)/18Genl (GS)/640/2021 dated
17.9.2021 in r/o Mr. Anirudh Prataprai Nansi, CGHS Card No. 6705885
regarding the subject mentioned above. In this regard, it is to inform you that
the case has been examined in this Ministry and after going through thePage 10 of 28
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WP7546_2022.DOCdocuments attached at the file they have noted that the patient has undertaken
elective treatment after prior permission from CGHS in which it was mentioned
that the treatment can be availed in any CGHS approved centre and
reimbursement shall be as per CGHS rates and the excess amount will be borne
by the patient.
As the case does not fall under any criteria for full reimbursement under
relaxation of rules. Hence, the case for full reimbursement is regretted.
Enclo:- ‘All relevant documents’
(Dr. Alka Ahuja)
Addl. DDG, CGHS (HQ)
Digitally signed by Alka Ahuja
Dt. 30-11-2021 18:03:15
Reason :Approved”
(emphasis supplied)
21. On 12 December 2021, the petitioner again made an application under the
Right to Information Act seeking clarification as to whether the affiliated Wockhardt
Hospital performs heart transplant, to which the Central Public Information Officer,
CGHS, Mumbai, by its reply dated 27 December 2021 stated that “no Government
hospitals have been issued a license to carry out heart transplant in Mumbai”.
22. The petitioner being aggrieved by the rejection of his request for full
reimbursement, filed in this Court Writ Petition No. 1377 of 2022 challenging the
letter dated 30 November 2021(supra) issued by respondent no. 4. In such Writ
Petition, the respondents filed a reply affidavit stating that the claim of the petitioner
is being placed before the High Power Committee. On such backdrop, this Court, by
order dated 2 March 2022, disposed of the petition, recording the statement of the
Advocates for the petitioner that the petitioner will appear before the High Power
Committee on such date as High Power Committee fixes.
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23. The petitioner by email dated 4 March 2022 forwarded a copy of the Order
passed by this Court along with relevant documents to the respondents. Further
follow-up steps were taken by the petitioner by addressing emails dated 7 March
2022 and 29 March 2022, requesting that a date for hearing before the High Power
Committee be fixed. In response thereto, the petitioner received two emails from
respondent no. 4 dated 29 March 2022; (at 1:58 p.m.) indicating that the case would
be discussed by the High Power Committee on the following day, and another at
2:05 p.m. on the same day, recording that the matter was under active consideration.
Despite such communications, no hearing was held, nor was any further response
received by the petitioner.
24. Finally, respondent no. 5 addressed a letter dated 13 April 2022 to the
petitioner purportedly conveying the decision of the High Power Committee inter
alia recording that upon examining the technical details of the case, the Committee
opined that grant of full reimbursement is not recommended as the treatment was
undertaken by the petitioner at non-CGHS rates and the procedure was a planned,
non-emergency surgery. It was further stated that reimbursement had already been
processed in accordance with CGHS extant rules. The rejection letter is required to
be noted which reads thus:
"To Date: 13/04/2022
Sh. Anirudh Prataprai Nansi,
To Highland Park, 1104, B wing,
Lockhandwala Complex, Andheri (W),
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Mumbai-400053.
Subject: – Heart transplant surgery of Mr. Anirudh -Pratapai Nansi,
CGHS Card No.6705885 for full reimbursement under relaxation of
rules-regarding.
Sir,
Kind reference is invited to the letter no.4(IV) 1/18Genl (GS)/640/2021
dated 17/09/2021 on the above mentioned subject.
In compliance with the order dated 02.03.2022 of the Hon’ble Bombay
High Court, a High-Powered Committee (HPC) meeting was convened on
30.03.2022 under the chairmanship of The Professor of Excellence, Director
General of health services in the Ministry.
After going into the technical details of the case, the Committee opined that
the grant of full reimbursement is not recommended as the beneficiary was
supposed to follow CGHS permitted rates, which was communicated to him vide
letter No.3(i)1/02. Recog. Genl dated 03.12.2020. The Committee also observed
that the procedure of heart transplantation was a planned surgery and not an
emergency, and the reimbursement has been done as per CGHS extant rules and
guidelines.
In this regard the decision of the HPC is being conveyed to you as per
directives of the Hon’ble High Court.
(Dr. (Mrs.) Durriya M. Desai)
ADDITIONAL DIRECTOR
CGHS MUMBAI.”
(emphasis supplied)
25. The petitioner thereafter sought a copy of the minutes of the High Power
Committee meeting held on 30 March 2022. Also by his letter dated 14 April 2022,
the petitioner once again approached respondent no. 5, thereby requesting for a
personal hearing to be granted to him by the HPC for reconsideration of the matter.
As there was no response, the petitioner made an application under the RTI Act
dated 21 April 2022, seeking a copy of the minutes of the HPC meeting as also the
details of the Appellate Authority. In response thereto, the Central Public
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Information Officer, CGHS Mumbai, vide letter dated 11 May 2022, provided copy
of the minutes of the HPC meeting, wherein the factum of treatment i.e., the heart
transplant was not disputed by the Committee. A copy of the same was later received
by the petitioner. The minutes of the meeting of the HPC held on 30 March 2022
reads thus:
“Minutes of the meeting
Minutes of the meeting of HPC held on 30.03.2022 at 3.30 p.m. chaired by
Prof. (Dr.) Rajiv Garg, Professor of Excellence, Director General of Health
Services, Ministry of Health & Family Welfare, Government of India, Nirman
Bhawan, New Delhi in his chamber to consider the Heart Transplantation in r/o
Anirudh Nansi (Court Verdict for quick closure).
Expert Opinion:-
After considering the appeal of Mr. Anirudh Prataprai Nansi and going
into the technical details of the case the committee is of the opinion that grant of
full reimbursement is not recommended as he was supposed to follow CGHS
permitted rates, which were communicated to him vide letter no.
3(i)1/02.Recog.Geni dated 03.12.2020. It was observed that the procedure heart
transplantation was a planned surgery and not emergency.
The HPC feels that the reimbursement has been done as per CGHS extant
rules and guidelines.”
26. On such conspectus, the petitioner being aggrieved by the purported rejection
of the petitioner’s application by respondent no. 7 – High Power Committee, of the
petitioner’s claim for full reimbursement of expenses, incurred by the petitioner
towards his heart transplant surgery, as communicated by respondent no. 5 –
Additional Director, CGHS Mumbai to the petitioner vide letter dated 13 April
2022, the petitioner has filed the present petition praying for the reliefs as noted
hereinabove.
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Reply Affidavit on behalf of the Respondents
27. A reply affidavit of Dr. (Mrs.) D M Desai, Additional Director, CGHS
Mumbai is filed on behalf of the respondents. The reply affidavit, at the outset,
contends that the petitioner has an alternate remedy of approaching the Central
Administrative Tribunal, Mumbai Bench under the provisions of the Administrative
Tribunals Act,1985. Hence, this petition be not entertained. It is next stated that the
petitioner’s demand for full reimbursement is an afterthought and a deviation from
what was accepted by him before availing of medical treatment. It is contended that
the petitioner was fully aware that treatment undertaken at a non-empanelled
hospital would only be reimbursed at CGHS-approved rates and that any amount in
excess thereof would be borne by him personally, as evident from the signed
statement dated 3 December 2020 issued by the Chief Medical Officer, CGHS. In
supporting such case, it is contended that the petitioner submitted an estimate of Rs.
25,00,000/- while seeking permission to avail treatment at a non-empanelled
hospital, asserting that the petitioner accepted the terms of reimbursement at CGHS
rates prior to the treatment. It is contended that however, the petitioner later on
sought applicability of higher CGHS rates as applicable in other metropolitan cities,
such as Delhi, and requested reimbursement at the rate of Rs. 3,17,400/-. It is thus
stated that, having accepted the applicable terms, the petitioner cannot now seek full
reimbursement. It is next stated that the petitioner had undergone elective treatment
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after securing prior approval with full knowledge of the reimbursement terms, and
hence, no case is made out for relaxation of the applicable rules.
28. It is next stated that the decision of the HPC rejecting the petitioner’s claim
was taken after following due procedure. It is stated that the HPC was duly
constituted as per the prescribed norms and that the HPC after examining the
medical records in the petitioner’s case, concluded that the petitioner’s claim for full
reimbursement could not be granted. It is next stated that the High Power
Committee functions in an administrative capacity and is not vested with judicial or
quasi-judicial powers, hence, there is no provision for a personal hearing before the
High Power Committee, nor has any such hearing was granted in previous cases. It is
stated that the Committee takes all decisions solely on documentary medical records
which are sufficient for the High Power Committee to take an appropriate decision
and, hence, there is no necessity for a personal hearing. It is further stated that
although heart transplant is an uncommon procedure, it is covered under the CGHS
guidelines applicable to empanelled hospitals and therefore does not qualify as a
“special case” for the purposes of relaxation of rules. On this contentions, it is
contended that no interference is warranted with the decision of the HPC.
Rejoinder Affidavit of the Petitioner
29. There is a rejoinder affidavit filed by the petitioner disputing the respondents
case. The petitioner denies the assertion that the relief sought, which is praying for a
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direction of a medical reimbursement for heart transplant, constitutes a service
matter falling within the jurisdiction of the Central Administrative Tribunal.
30. It is next stated that there is no rebuttal of the respondents to the petitioner’s
core grievance, namely, on the unreasonableness of CGHS rates, fixed for heart
transplant procedures more particularly when compared to higher CGHS approved
rates for other medical procedures of comparable or lesser complexity such as liver
transplant, kidney transplant, ASD closure, Coronary Artery By Pass Graft Surgery
(CABG) + IABP + VALVE, MVR, etc., as well as the discriminatory lower rates for
city like Mumbai with other cities such as Pune, Hyderabad, Kolkata, Chennai,
Bangalore etc. It is next contended that prior to submitting his claim for medical
reimbursement, the petitioner informed the respondents of the estimated cost of Rs.
25,00,000/- towards heart transplant surgery proposed to be undertaken at Sir H.N.
Reliance Hospital Mumbai. It is stated that while the petitioner initially accepted the
reimbursement at CGHS rates applicable at that time, such acceptance was made
under compulsion due to his urgent medical condition and it was only after his
recovery further inquiries, he came to understand his entitlement under the Office
Memorandum dated 6 June 2018.
31. It is stated that none of the CGHS-empanelled hospitals in Mumbai were
authorised to perform heart transplant surgeries at the relevant time, hence, the
contention of the respondents that the petitioner was aware and accepted treatment
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only at CGHS-approved rates is without merit. The petitioner further states that he
cannot be made to run to another State solely to avail of a heart transplant in a
CGHS-empanelled hospital. The treatment undertaken was of a rare and emergent
nature, and therefore qualifies as being under “special circumstances”. The denial of
full reimbursement, despite the acknowledged absence of any empanelled facility in
Mumbai, offering heart transplants, is stated to be arbitrary, unjust, and contrary to
established policy.
Reasons and Conclusions
32. We have heard learned counsel for the parties. We have also perused the
record. Having noted the facts in some detail and having considered the applicability
of Office Memorandum dated 28 August 2011 and the impugned decision dated 13
April 2022 (supra), we are of the opinion that the impugned decision as taken by the
High Power Committee denying the petitioner full reimbursement of the medical
expenses incurred by the petitioner for the heart transplant on the ground that
CGHS permitted rates are required to be followed, is not the correct and a legal stand
of the respondents. Also the observation of the High Power Committee that the
procedure of heart transplantation was a planned surgery and not an emergency,
hence, the reimbursement has been done as per CGHS extant rules and guidelines,
are the only reasons on which full reimbursement under relaxation of rules has been
rejected.
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33. We are not in agreement with such reasons which are set out in the
communication dated 13 April 2022 for the reasons we discuss hereunder.
34. We find that vide Office Memorandum (OM) dated 28 August 2011, the
respondent notified fresh empanelment of private hospitals and revised package rates
applicable under CGHS, Mumbai and issued clarification in that regard. A corrected
list of package rates applicable for empanelled hospitals under CGHS, Mumbai was
enclosed to such OM. The hospitals, which were already empanelled or which were
being empanelled under continuous empanelment scheme under CGHS, Mumbai
were requested to take note of the corrected rates. It provided that the bills already
cleared would not be reopened. The corrected list of package rates insofar as heart
disease, which included heart transplant are required to be noted, which reads thus:
CGHS MUMBAI RATES FOR HOSPITALS – 2010 (Updated on 14th May, 2021)
S. NAME OF INVESTIGATION Rate of NABH Rate for Non Rate for Super
No. TREATMENT PROCEDURE Hospital NABH Hospital Speciality
Hospital
506 Double Valve Replacement (DVR) 178735 155422
.. …
.. ...
515 Gunshot injury 86250 75000 86250
516 Heart transplant 69000 60000 69000
35. The aforesaid Office Memorandum came to be revised by subsequent Office
Memorandum dated 18 February 2015.
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36. It appears that vide Office Memorandum dated 15 July 2014, the
Government of India has provided for relaxation of procedures to be followed in
considering requests for medical reimbursement claims in respect of CS(MA)
beneficiaries. It is appropriate to note the contents of the Office Memorandum,
which reads thus:
H. 11022/01/2014-MS
Government of India
Ministry of Health and Family Welfare
Department of Health & Family Welfare
………..
Nirman Bhawan, New Delhi
Dated 15th July, 2014.
OFFICE MEMORANDUM
Subject: Relaxation of procedures to be followed in considering requests for medical
reimbursement claims in respect of CS (MA) beneficiaries.
Ministry of Health & Family Welfare received several representations from
CGHS beneficiaries for issue of guidelines to be followed in considering requests for
relaxation of procedures in considering requests for medical reimbursement over
and above the approved rates. The matter was examined by the Ministry and Office
Memorandum No. 4-18/2005-C&P (Vol-1 Pt.(1)} dated the 20th February, 2009
was issued prescribing the procedures and guidelines to be followed for
consideration of requests received from CGHS beneficiaries seeking reimbursement
of expenditure incurred on medical treatment over and above the approved rates.
The requirement of essentiality certificate in respect of CGHS beneficiaries was also
done away with.
However, no such guidelines were issued under CS(MA) Rules. In this
regard Department related Parliamentary Standing Committee on Health and
Family Welfare in the seventy first report impressed upon the Department to
immediately address this issue and extend same facilities to those covered under
CS(MA) Rules and to issue a fresh circular clarifying the procedures in this regard
and dispelling misgivings, if any. Ministry was also in receipt of representation from
several quarters in this regard.
2. The matter has been examined in consultation with Dte.GHS and it has been
decided to revise the guidelines for reimbursement by the competent authority to
issue guidelines under CS(MA), on similar pattern as under CGHS as per the
following:
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WP7546_2022.DOC(1) It has now been decided to do away with the procedure for verification
of bills and issue of essentiality certificate by the treating doctor and the
Medical Superintendent of the hospital. Ministries/Authorities
concerned may verify and check the authenticity of the claims on the
basis of the prescription slip and the diagnostic report submitted by the
Government servant. In the event of any doubt, the concerned
Ministry/Authority can always get verification done from the hospital
concerned.
(2) It is clarified that essentiality certificate/counter signature of treating
doctor in a hospital would not, henceforth, be necessary. However,
essentiality certificate would be required when the treatment is taken
from an AMA on OPD basis.
(3) All cases involving requests for relaxation of rules for reimbursement of
full expenditure will henceforth be referred to the Technical Standing
Committee, to be chaired by the DGHS/Spl. DGHS and Specialists of
concerned subject as members. Addl. DDG (MG-Section), Dte. GHS
shall be member secretary for organizing the meetings of Technical
Standing Committee. If Technical Standing Committee recommends
the relaxation of rules for permitting full reimbursement of expenditure
incurred by the beneficiary, the full reimbursement may be allowed by
the Secretary (Health & Family Welfare) in consultation with IFD. A
check list for consideration of requests for reimbursement in excess of
the approved rates may include:
a. The treatment was obtained in a private hospital not empanelled
under CS(MA)/ CGHS under emergency and the patient was
admitted by others when the beneficiary was unconscious or severely
incapacitated and was hospitalized for a prolonged period;
b. The treatment was obtained in a private hospital not empanelled
under CS(MA)/ CGHS under emergency and was admitted for
prolonged period for treatment of Head injury, Coma, Septicemia,
Multi-organ failure, etc.;
c. Treatment was obtained in a private hospital not empanelled under
CS(MA)/ CGHS under emergency for treatment of advanced
malignancy;
d. Treatment was taken in a private hospital not empanelled under
CS(MA)/ CGHS under emergency in higher type of accommodation
as rooms as per his/her entitlement was not available during that
period;
e. Treatment was taken in higher type of accommodation under
specific conditions for isolation of patients to avoid contacting
infections,Page 21 of 28
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WP7546_2022.DOCf. Treatment was obtained in private hospital not empanelled under
CS(MA)/ CGHS under emergency while on official tour to another
city;
g. Treatment was obtained in a private hospital not empanelled under
CS(MA)/ CGHS under emergency when there is a strike in Govt.
hospitals;
h. Approval for air-fare with or without attendant on the advice of
treating doctor for treatment in another city even though he is not
eligible for air travel/treatment facilities are available in city of
residence and
i. Any other special circumstances.
4. The Office Memorandum is issued with the concurrence of IFD vide
Dy.No.C-695 dated 07.07.2014.
(Arun Chowdhury)
Under Secretary to the Government of India.”
(emphasis supplied)
37. From the plain reading of the aforesaid Office Memorandum, it is clear that a
provision is made for relaxation in reimbursement of the medical expenses incurred
in special cases, in peculiar circumstances, as also in cases of emergency and other
special circumstances. From the contents of the aforesaid Office Memorandum and
even otherwise, we fail to understand as to how a requirement of heart transplant
cannot be considered to be an extraordinary and not an emergent and inevitable
surgery, as a heart transplant is required only when the heart is failing, the
consequences of which are just to be imagined. As to what is the plight of the patient
in such situation, would not require any elaboration. It is in these circumstances, the
case of the petitioner ought to have been considered by the High Power Committee.
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38. From the impugned decision, it appears to us that a narrow, pedantic and/or a
too technical view has been taken by the HPC in rejecting the full medical
reimbursement to the petitioner. We would not find that the petitioner’s application
for full medical reimbursement could not have been rejected on the ground that it
was a planned surgery and/or merely because the rates being notified, the petitioner
ought not to be granted any reimbursement.
39. Even assuming that the aforesaid Office Memorandum providing for
relaxation of the conditions was not to be issued, it cannot be said that the
respondents were powerless or would lack authority to consider special cases of
reimbursements of medical expenses when the treatment received is of such serious
nature, in considering applications of reimbursement in such category. These are all
executive powers as conferred on the Central Government under the provisions of
Article 73 of the Constitution, which are coterminous with the power to legislate. In
the absence of any specific legislation, exercise of such power and more particularly
for preservation of fundamental rights necessarily has a legitimate constitutional
recognition.
40. It also cannot be that the rules governing reimbursement are sacrosanct and
nothing outside the rules in exceptional/special cases and especially deserving cases,
can be considered for reimbursement by the Central Government. It would not
require elaboration that in such matters it is an accepted position that there is a free
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play in the joints and such category of cases are required to be considered on their
merits. A case to case legitimate decision protecting the fundamental rights is
expected to be taken by the concerned officers. Such powers are conferred only to be
utilized and more particularly when there is a need to exercise such powers not only
to protect the fundamental rights but right to life and right to livelihood. Thus, apart
from the Office Memorandum dated 15 July 2014 providing for relaxation, the High
Power Committee even otherwise could exercise such powers of relaxation and in
such deserving case, exercise its discretion to award full medical reimbursement.
41. The present case indisputedly is a case of heart transplant which by all
standards is a serious ailment. Certainly, the surgery is one of urgency and critical
importance, and could not have been postponed. It is a special circumstance. It is
imperative that such surgeries are expedited in the interest of human life without an
embargo of an expenditure which is secondary to human life.
42. The respondents have not come with a case that immediate transplant facility
was available or the organ was available for transplant, in any of its empanelled or
CGS hospitals. If that be the case, certainly it cannot be said that the petitioner
undergoing a heart transplant at a private hospital, where the organ was available and
which could be immediately transplanted without any waste of time, was not an
emergent and / or wrong decision on the part of the petitioner, and/or nonetheless
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despite such availability, he ought to have awaited for the heart transplant in the
hospital which the CGHS authorities would intend. This would have brought about
a situation of the petitioner requiring to unwarrantedly suffer an ordeal of a fruitless
wait. The petitioner rightly preferred not to wait in such uncertainty and availed of
the heart transplant at the private hospital.
43. In these circumstances, we are of the clear opinion that in a situation to save
his life, the petitioner was certainly entitled to take a decision to have a heart
transplant at a private hospital, in the absence of such facilities being readily / timely
made available, in all the empanelled hospitals. Hence, the petitioner was required to
be granted full reimbursement of all the expenditure, when such expenditure was not
in dispute. Not granting full reimbursement, in these circumstances in our opinion,
is not only violative of the fundamental rights but strikes at the very root, purpose
and essence of these basic human rights as guaranteed by the Constitution, i.e., Right
to Life under Article 21. It was this fundamental right which is being asserted by the
petitioner when in such circumstances he demanded reimbursement of medical
expenses, and for violation of these rights seeking a remedy to approach the writ
Court, cannot be said to be any misconceived approach on the part of the petitioner,
more particularly the respondent’s accepting an earlier order passed by this Court on
the writ petition filed by the petitioner.
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44. It is in such circumstances, it was necessary for the High Power Committee to
weigh the case of the petitioner with human sensitivity. However, the High Power
Committee in its usual, routine and mundane method appears to have taken the
impugned decision without hearing the petitioner, despite the clear orders of this
Court in the prior proceedings filed by the petitioner.
45. We may also observe that although some medical facilities are available in
CGHS hospitals, it is not possible that such specialized medical facilities are available.
It is for such reason, necessarily treatment is required to be availed by such patients
from private hospitals, for which reimbursement is sought from the Central
Government. In such situation, the Central Government is under an obligatory
position to grant reimbursement on case to case basis. It may be true that for certain
ailments, rates are fixed, however, the health issues are such that there cannot be a
straight jacket formula in arriving at the rates for reimbursement and in a given
situation, the Competent officer or the HPC would be required to grant
reimbursement considering the treatment as received by the patient/employee. In
many of such reimbursements, there may not be any issue or dispute on the amount
of reimbursement, however, this would not mean that in very peculiar, serious,
specialized cases of medical treatment, the reimbursement needs to be only as per the
rates which are pre-determined. This would be most unrealistic, unfair and
discriminatory as in the present situation. Any employee, merely because he has
retired, ought not to be differently treated when it comes to genuine and realistic
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health expenditure. There is another aspect that the reimbursement rates are not
revised from time to time in the absence of which, they are rendered unrealistic.
46. Thus, patients like the petitioner, who is a pensioner, cannot be deprived of
benefits of medical reimbursement when he received treatment at private hospital,
more particularly, when the petitioner’s case is accepted as a genuine case, which in
our opinion, was certainly of an urgent nature. In the present case, the respondents in
no manner whatsoever dispute the treatment of the petitioner and the expenditure
incurred. The respondents have all powers to examine the credentials of the
applications and enquire about the genuineness of the claim. Thus, once the facts of
the petitioner’s case remained indisputed, i.e., when the medical treatment was not in
dispute in the petitioner receiving specialized or urgent treatment and when the
amount claimed by the petitioner is the actual expenditure incurred by him is also
not in dispute, in these circumstances, to make the petitioner suffer for
reimbursement, in our opinion, amounts to travesty of justice and a glaring violation
of the fundamental rights guaranteed to a citizen who is the former employee of the
Central Government. In such circumstances, in our opinion, the High Power
Committee ought to have been humanely sensitive in dealing with the petitioner’s
case and ought not to have adopted a mechanical and a narrow-minded approach.
47. Thus, we have no manner of doubt that looked from any angle, the petition
needs to eminently succeed. It is, accordingly, allowed in terms of prayer clauses (A)
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and (B). Needful reimbursement be done to the petitioner within a period of four
weeks from today.
48. Rule is made absolute in the aforesaid terms. No costs.
(ADVAIT M. SETHNA, J.) (G. S. KULKARNI, J.)
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Signed by: Vidya S. Amin
Designation: PS To Honourable Judge
Date: 06/06/2025 15:41:17