Ajoy Kumar Mukherjee, J.

1. The present application has been preferred against the refusal of petitioner’s prayer for reimbursing expenses incurred on medical treatment by the Respondent authority on the ground that there exists no provision for settlement of medical claim to the petitioner, who being a pensioner had drawn fixed medical allowance at the rate of Rs. 1000/- per month from the sanctioned pension of the petitioner.

2. The factual matrix of the present case is that the petitioner was an employee under the Respondent No.1 and after serving more than 37 years, the petitioner was superannuated from service on 30.09.2017. Unfortunately, petitioner met with an accident on 04.01.2022, which resulted tibial fracture with C5-C6 fracture dislocation and was immediately admitted to GB Pant Hospital, Port Blair. The doctor of said GB Pant Hospital considering the seriousness of injury, referred the petitioner to any hospital at mainland for further advancement of treatment by spinal surgeon/ neurosurgeon.

3. Accordingly, the petitioner was shifted to Chennai hospital where he had to undergone a surgery on 12.02.2022 and for which he had to incur expenses of medical treatment for an amount of Rs. 6,59,320/- (Rupees six lakh fifty nine thousand three hundred twenty only). It is not in dispute that the Andaman & Nicobar Administration are not covered by the Central Government Health Scheme (in short CGHS).

4. The petitioner made an application before the Respondent No.2 for re-imbursement of such medical expenses along with all relevant documents on 11.10.2022 but the Respondent authority rejected his prayer for aforesaid medical re-imbursement vide its letter dated 16.06.2023, which has forced the present petitioner to prefer this Writ Application.

5. Mr. Kumar, learned Counsel appearing on behalf of the petitioner submits that in terms of the Government of India, Ministry of Family Welfare Memorandum dated 05.06.1998 the benefit of Central Service (Medical Allowance) Rules 1944 (in short CS(MA) Rules, 1944) was extended to the pensioners residing in area not covered under the CGHS for the reason that the pensioners should not be deprived of medical facilities from the Government during their old age.

6. In this context, Mr. Kumar pointed out that the Government of India, Ministry of Health and Family Welfare by it’s Office Memorandum dated 05.06.1998, declared that the pensioners should not be deprived of medical facilities from the Government during their old age when they require the most and thereafter the Ministry expressed their no objection to the extension of the CS (MA) Rule, 1944 to the Central Government pensioners residing in non-CGHS areas as recommended by the pay commission.

7. Mr. Kumar further argued that the re-imbursement of the medical claim of the petitioner, even after retirement is a fundamental right guaranteed under Article 21 of the Constitution of India, which guaranteed right to life and right to life includes right to health. Mr. Kumar in this context relied upon following judgements:-

"1. Order dated 28.04.2023 passed in OA No. 351/0001/2021 (Shri Raj Kumar Saw Vs. Union of India and Others).

2. Order dated 29.09.2023 passed by this Hon’ble Court in WPCT/44/2023

3. Order dated 26.07.2023 passed by this Hon’ble Court in WPCT/30/2022.

4. Order dated 05.02.2024 passed by the learned Central Administrative Tribunal in CPC No. 69/2022.

5. Order dated 21.05.2007 passed by the learned Central Administrative Tribunal in OA No. 22/AN/2006.

6. Order dated 12.12.2012 passed by this Hon’ble Court in WPCT No. 213 of 2007.

7. Order dated 05.05.2014 passed by the Hon’ble Supreme Court in SLP (Civil) CC No. 6805/2014.

8. Order dated 19.12.2013 passed by this Hon’ble Court in WPCT No. 169 of 2013.

9. Shiva Kanta Jha Vs. Union of Indi, decided on 13.04.2028 by the Hon’ble Supreme Court of India (Paragraph No.13).

10. Consumer Education Research Centre nad others Vs. Union of India, decided on 27.01.1995 by the Hon’ble Supreme Court of India (Paragraph No. 20.21,23,24,26,27 and 33)."

8. Mr. Shatadru Chakraborty, learned Counsel appearing for the respondent referred office memorandum dated 29th September, 2016 issued by Government of India in respect of reimbursement of medical claims to pensioners and he submits that pensioners are not covered under the CS (MA) Rules, 1944 but pensioners residing outside CGHS area are entitled to fixed medical allowance for their OPD/IPD needs. In this context, he further pointed out that pensioners residing in non-CGHS area have three options namely, they may draw fixed medical allowance and in such cases pensioner will have to make their own arrangement for both IPD and OPD treatment, alternatively pensioner may draw fixed medical allowance for OPD and avail CGHS benefit for IPD from the nearest CGHS city after making required subscription to CGHS card or pensioners may avail CGHS facility for both OPD and IPD from the nearest CGHS city after making the required subscription to CGHS.

9. In view of aforesaid submissions made by the parties, the main issue for consideration in the instant application is whether a retired employee residing in non-CGHS area and who has received fixed medical allowance, is entitled to medical re-imbursement as per CS (MA) Rules 1944. It is not in dispute in the present context that the petitioner was an employee under Andaman & Nicobar Administration. On perusal of the office Memorandum dated 29.09.2016, which has been relied by the Respondent Administration, speaks in paragraph 3 as follows:-

“3. In view of the above, reimbursement of medical claims to pensioners under CS (MA) Rules, 1944 as directed by various CATs/Courts, need not be referred to the Ministry of Health and Family Welfare. The respective Administrative Department / Ministry may take their own decision in this regard.”

10. The aforesaid clause of the Office Memorandum makes it specific by giving liberty to the Administration to take their own decision in this regard and not to sit tight over the matter in order to show an indifferent attitude towards his own employee who has served under the Administration for a considerable period of time.

11. Needless to reiterate that, fundamental human right to live includes right to live the life in meaningful and purposeful manner with dignity. In a welfare state like ours the state is an under obligation to provide free medical assistance to his employees especially when the hospital run by the Administration, where the petitioner was immediately admitted after unfortunate accident, advised and referred for advancement of treatment and under compelling circumstances the petitioner had to take treatment from a hospital at mainland. It is interesting to note that one wing of the Government department had referred the petitioner for advancement of treatment to a hospital at mainland for whatever reason but after getting such treatment another wing of the same Government does not hesitate to withheld petitioner’s prayer for re-imbursement on a flimsy ground that such reimbursement can only be made as per rules, ignoring the fact that the rules have specifically given them discretion to take their own decision, considering the facts and circumstances of the situation. Needless to say that “may take their own decision” in the aforesaid office memorandum does not give Administration to take any arbitrary on whimsical decision but it must be based on sound reasonable discretion.

12. In fact, controversy involved in the instant application is no longer res integra. In Smt. Satya Devi Vs. Union of India and Ors. (OA No. 060/267/2021 decided on 19th July, 2023 the same argument that in view of Central Government Office Memorandum dated 29.09.2016, the options were given to the pensioners residing in non CGHS area and unless such option is being exercised by the petitioner he is not entitled to medical reimbursement, has been negated by the CAT of Chandigarh Bench relying upon Mahindra Singh Vs. Union of India and Ors., 2008 (2) SCC 239, Baldev Singh Vs. Union of India and Ors. (OA No. 884/2014, decided on 25.02.2016). Tribunal in the said case directed the respondent authority to settle the medical claim of the applicant at the CGHS rate and reimburse the amount along with interest thereon at the rate of 6% per annum from the date the claim was submitted, after setting aside the order of refusal. In Baldev Singh Vs. Union of India and Ors (Supra), it has been specifically held that the fixed medical allowance opted for by the retired employees and given to them is for outdoor facilities only and cannot take care of hospitalization.

13. Accordingly, in the present case, even if the petitioner had received fixed medical allowance, that amount is confined to outdoor treatment only and since in the present context it has not been disputed that the petitioner had to undergo indoor treatment, the authorities cannot shark their responsibilities on the ground that the petitioner had received fixed medical allowance or that he had not enrolled himself under any scheme.

14. It has been decided in a number of judgements that a retired Government employee cannot be denied the medical facilities which he was entitled to during his employment. In fact, the Apex Court in the case of Shiva Kant Jha Vs. Union of India, Writ Petition (Civil) No. 694 of 2015 decided on April 13, 2018 held that in such cases the authorities are only bound to ensure that the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned and a decision has to be taken by showing humanistic approach. In the present case, it is not the stand of the Respondent that the claimant has not taken treatment from the mainland or he has not incurred the medical expenditure which he has actually sought for.

15. A Division Bench of Punjab and Hariyana High Court in CWP No. 26270 of 2015 held that the action of the Union of India in not reimbursing the medical bills to its employees who are neither covered under the CGHS scheme or CS (MA) Rules is illegal, arbitrary, capricious, discriminatory and violative of Article 14, 16 and 21 of the Constitution of India.

16. The Division Bench of this Court while disposing WPCT No. 169 of 2013 in its order dated December 19, 2013 specifically held that in such cases Government cannot avoid its obligation to bear the expenditure and accordingly laid down the guidelines to be followed by the Administration. In fact, the stand taken by the Respondent Administration in the present context were taken in earlier cases also initiated by the retired employees of the Administration and a unanimous decision has been taken by the Court extending the facility of medical reimbursement to such pensioners.

17. In Shiv Kant Jha Vs. Union of India (Writ petition Civil No. 694 of 2015) which was decided on April 13, 2018, Their Lordship specifically held in paragraph 13 as follows:-

“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. In the said Judgment it was further held that the relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement.

19. In Consumer Education and Research Centre and Ors. Vs. Union of India and Ors. Reported in 1995 (3) SCC 42 the Apex Court held in paragraph 27 as follows:-

“Therefore, we hold that right to health, medical aid to protect the health and vigour of a worker while in service or post retirement is a fundamental right under Article 21, read with Articles 39 (3), 41,43 48 A and all related to Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person.”

20. Such being the position of law as enunciated in the above quoted decisions and the ratio laid down in aforesaid judgements which clearly applicable in the present context, I do not find any substance in the decision of the Administration by which the respondents held that the petitioner is not entitled to medical reimbursement as he has received fixed medical allowance or on the ground that he has not enrolled himself under relevant health scheme, and as such the impugned decision taken by the respondent Administration calls for interference.

21. The Respondent authorities are directed to process the case of reimbursement of medical expenses bills submitted by the applicant amounting to Rs. 6,59,320/- (Rupees six lakhs fifty nine thousand three hundred twenty only) within a period of 12 weeks from the date of this order and in the event the authorities are satisfied from the documents that the petitioner has actually incurred such expenditure, they will make payment to the applicant along with 6% interest on the total amount which accrued from the date of making the prayer, within a period of 4 weeks thereafter.

22. WPA No. 756/2023 is accordingly, disposed of.

23. However, there shall be no order as to costs.

24. Urgent Xerox certified copy this judgement be supplied to the Learned Counsel appearing for the respective parties upon compliance of usual formalities.