# Ram Prasad Dwivedi v. The State of U.P. & Ors

- **Citation:** (2024) 2 ILRA 806
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-09
- **Case number:** Writ - A No. 7942 of 2023
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-prasad-dwivedi-v-the-state-of-u-p-ors-51485
- **Pages:** 9

## Headnote

C.S.C., Mr. Vimlesh Kumar Rai, Mr. Suresh
Singh

A. Uttar Pradesh Government Servants
(Medical
Attendance)
Rules,
2011
-
Adoption by U.P. Jal Nigam -
Medical
reimbursement
claim
for
cancer
treatment at Mahamana Pandit Madan Mohan
Malaviya Cancer Centre (a unit of Tata Memorial
Centre, Mumbai, a Govt. of India grant-in-aid
institute) - Denial on ground of being "private
hospital" - Whether sustainable.

Held: Para 9-13
The 2011 Rules stand adopted by the Board of
Directors of U.P. Jal Nigam through office
memorandum dated 28.06.2016. The said
Scheme
permits
reimbursement
even
for
treatment in private hospitals recognized by the
St./Central Government, subject to certain
conditions. MPMMCC being a unit of Tata
Memorial Centre (grant-in-aid by Department of
Atomic Energy, Govt. of India) cannot be
treated as a private hospital for denial of claim.

B. Interpretation of Office Memoranda vis-à-vis
Statutory Rules -
Whether a subsequent memo dated 13.07.2020,
prohibiting reimbursement for private hospitals,
overrides adoption of 2011 Rules and memo of

## Text

806 INDIAN LAW REPORTS ALLAHABAD SERIES
the
new
scheme
for
compassionate
appointment enforced through circular
dated 10.05.2019, had become effective i.e.
08.02.2019, the petitioner cannot claim a
right to compassionate appointment under
the Finance Ministry's scheme or the
circular dated 10.05.2019. He had, in fact,
no right to compassionate appointment, as
rightly held by the Bank.

17. In this view of the matter, there is
no force in this writ petition. It is,
accordingly, dismissed.

18. There shall be no order as to costs.
----------
(2024) 2 ILRA 806
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 7942 of 2023

Ram Prasad Dwivedi ...Petitioner
Versus
The State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Mr. Girish Chandra Yadav

Counsel for the Respondents:
C.S.C., Mr. Vimlesh Kumar Rai, Mr. Suresh
Singh

A. Uttar Pradesh Government Servants
(Medical
Attendance)
Rules,
2011
-
Adoption by U.P. Jal Nigam -
Medical
reimbursement
claim
for
cancer
treatment at Mahamana Pandit Madan Mohan
Malaviya Cancer Centre (a unit of Tata Memorial
Centre, Mumbai, a Govt. of India grant-in-aid
institute) - Denial on ground of being "private
hospital" - Whether sustainable.

Held: Para 9-13
The 2011 Rules stand adopted by the Board of
Directors of U.P. Jal Nigam through office
memorandum dated 28.06.2016. The said
Scheme
permits
reimbursement
even
for
treatment in private hospitals recognized by the
St./Central Government, subject to certain
conditions. MPMMCC being a unit of Tata
Memorial Centre (grant-in-aid by Department of
Atomic Energy, Govt. of India) cannot be
treated as a private hospital for denial of claim.

B. Interpretation of Office Memoranda vis-à-vis
Statutory Rules -
Whether a subsequent memo dated 13.07.2020,
prohibiting reimbursement for private hospitals,
overrides adoption of 2011 Rules and memo of
2016.

Held: Paras 6, 9, 14-15
Once the Board has adopted the 2011 Rules and
framed the 2016 Scheme accordingly, a later
office memo by the Managing Director cannot
defeat statutory adoption. The binding scheme
remains the 2016 memorandum.

C. Scheme of 2016 - Requirement of Referral &
Prior Permission - Non-Compliance - Effect.
Held: Paras 11-13
Although the Scheme requires referral from
Government hospital and prior permission of
Chairman, such technical lapses cannot defeat
genuine claims, particularly of senior citizens
suffering from life-threatening diseases like
cancer. Rules must receive a liberal construction
to advance their purpose.

D. Writ Jurisdiction - Objection that impugned
rejection order not challenged - Sustainability.
Held: Para 6
Mandamus being a writ of widest amplitude,
relief cannot be denied merely because specific
order not challenged. Writ jurisdiction is
essentially equitable and technical objections
cannot bar relief where justice demands.

Writ petition partly allowed.

Petitioner directed to resubmit his claim in
prescribed proforma under 2016 Scheme.
Respondents to process and dispose of claim
within one month, bearing in mind Court's
directions and affidavit of Principal Secretary
dated 16.07.2023. No order as to costs.
2 All. Ram Prasad Dwivedi Vs. The State of U.P. & Ors.
807
(Delivered by Hon'ble J.J. Munir, J.)

1. Heard Mr. Girish Chandra Yadav,
learned Counsel for the petitioner, Mr.
Vimlesh Kumar Rai, learned Counsel
appearing on behalf of respondent Nos.2, 3
and 4 and Ms. Monika Arya, learned
Additional
Chief
Standing
Counsel
appearing for respondent No.1.

2. The petitioner, Ram Prasad
Dwivedi is a retired Assistant Engineer. He
was employed with the Uttar Pradesh Jal
Nigam, and after its division, is regarded a
part of the Uttar Pradesh Jal Nigam
(Urban). He retired from service on
30.09.2008, when the Nigam was still a
unified entity. The petitioner is now a 70
year old man, and as he says, lost vision in
both his eyes to Glaucoma. The petitioner
consulted an E.N.T. Doctor for a problem
with his throat, who, after a clinical
evaluation
and
consideration
of
pathological reports, referred him to the
Mahamana Pandit Madan Mohan Malaviya
Cancer Centre, Varanasi (for short, 'the
MPMMCC') on 07.11.2021. The petitioner
went to the MPMMCC, where after a
thorough check-up from 13.11.2021 to
11.01.2022,
he
was
diagnosed
with
Lymphoepithelial Carcinoma, a cancer. He
underwent surgery followed by radio and
chemotherapy, that was necessary to treat
the deadly disease. The petitioner says that
his treatment is still continuing. It is
averred in Paragraph No.11 of the writ
petition that the petitioner informed the
Personal assistant/ Executive Engineer in
the office of the Chief Engineer, U.P. Jal
Nigam (Urban), Prayagraj Zone, Prayagraj
through an application dated 13.01.2022
that he was undergoing treatment for his
cancer at the MPMMCC and Homi Bhabha
Cancer Hospital, Varanasi. The petitioner
then submitted his treatment plan and
record of admission for the purpose of
surgery at the MPMMCC to the Personal
Assistant to the Chief Engineer aforesaid,
whereupon the Personal Assistant is said to
have written a letter to the petitioner on
31.01.2022 that the MPMMCC is not a
government hospital. A copy of this letter
is not on record.

3. Nevertheless, it is the petitioner's
case that he posted the office of the Chief
Engineer with details of his treatment, that
includes his treatment file, card etc. on
22.02.2022, that were duly received by the
office of the Chief Engineer, U.P. Jal
Nigam (Urban), Prayagraj on 23.02.2022.
The petitioner indicated that the MPMMCC
is a government hospital, being a grant-inaid institute of the Department of Atomic
Energy, Government of India. Upon receipt
of the said letter dated 23.02.2022, the
Personal Assistant to the Chief Engineer,
U.P. Jal Nigam (Urban), Prayagraj Zone,
Prayagraj responded vide memo dated
24.02.2022, bearing No. 550/ नचनकत्सा
प्रनतपूनतद/ 18, declining the petitioner's claim
on the ground that the MPMMCC is a
private hospital and a Branch of the Tata
Memorial Centre, Mumbai. It was indicated
that the petitioner's claim for medical
reimbursement
cannot
be
paid
in
accordance with the office memo No. 966/
एसी-लेखा सामान्य/ नच0प्रनत0/309/20, dated
13.07.2020
issued
by
the
Managing
Director, U.P. Jal Nigam, Lucknow, which
prohibits reimbursement of medical claims
for treatment availed in private hospitals.
The material part of the office memo
aforesaid reads:

"प्रायैंः यि देखा जा रिा िै नक उ0प्र0
जल ननगम के कानमदकोीं एिीं सेिाननिृत्त पेंशनरो
द्वारा सामान्यतैंः ननजी नचनकत्सालयोीं में िी
उपचार कराया जा रिा िै, जबनक सरकारी
808 INDIAN LAW REPORTS ALLAHABAD SERIES
नचनकत्सालय अपेक्षाकृत अनधक सुनिधा सम्पन्न
िै तथा उपचार र्ी बेितर िोता िै। ननजी
नचनकत्सालयोीं में कराये जा रिे उपचार अत्यनधक
व्ययर्ार आता िै तथा निर्ाग की ितदमान
नित्तीय क्तस्थनत ठीक न िोने के कारण ननजी
नचनकत्सालय में करायी गयी नचनकत्सा की
प्रनतपूनतद नकये जाने में कनठनाई उत्पन्न िो रिी िै
सम्यक निचारोपरान्त यि ननदेश जारी नकये जा
रि ि नक सामान्यतैंः सरकारी नचनकत्सायोीं यथा
के0जी0एम0यू0, एस0जी0पी0जी0आई0, डॉ0
राम मनोिर लोनिया मेनडकल इन्सटीट्यूट,
बलरामपुर नचनकत्सालय, श्यामा प्रसाद मुखजी
नजला
नचनकत्सालय
आनद
सरकारी
नचनकत्सालयोीं/ सींस्थानोीं में करायी गयी नचनकत्सा
की िी प्रनतपूनतद की जा सकेगी। यनद अत्यन्त
निषम क्तस्थनत में ननजी नचनकत्सालय में नचनकत्सा
कराना इस नलए अपररिायद िो नक िि उपचार
इन सरकारी अस्पतालोीं / सींस्थानोीं में उपलब्ध
निी िो तर्ी उसकी स्वीकृनत िेतु प्रस्ताि मा0
अध्यक्ष जी को स्वीकृताथद अग्रसाररत नकया जा
सकेगा।"

4. It is the petitioner's case that his
claim has been rejected solely on the
ground that he took treatment to cure his
cancer at the MPMMCC, which the
respondents regard as a private hospital. It
is also the petitioner's ground to assail the
denial of his claim that the view that for
treatment taken at a private hospital, no
medical reimbursement can be claimed, is
based on a mere memo issued by the
Managing Director of the U.P. Jal Nigam,
whereas the right to claim medical
reimbursement flows from The Uttar
Pradesh Government Servants (Medical
Attendance) Rules, 2011 (for short, 'the
Rules of 2011'). The petitioner has prayed
for a mandamus ordering the respondents
to reimburse his medical expenses to the
tune of Rs.3,64,303/- spent on his treatment
within a stipulated period of time.

5. When this petition came up for
admission on 07.07.2023, this Court passed
a detailed order, requiring the Chief
Engineer to file his personal affidavit,
which would be read as a counter affidavit.
The Chief Engineer (Prayagraj Zone), U.P.
Jal Nigam (Urban), Prayagraj filed a
counter affidavit dated 12.07.2023, where
the stand taken, that would shortly be
noticed, seem to be very obstructive, rather
than fair and facilitative in a matter like the
one in hand. This Court, therefore, passed a
further order dated 12.07.2023, requiring
the Principal Secretary, Ministry of Urban
Development,
Government
of
U.P.,
Lucknow to file his personal affidavit. The
material part of this Court's order dated
12.07.2023 reads:

"A counter affidavit has been
filed on behalf of respondent nos. 2, 3 and
4, where the stand maintained is strikingly
bureaucratic. The respondents insist that be
it cancer and howsoever a killer disease it
might be, the scheme for reimbursement of
medical
expenses
would
require
the
petitioner to be treated at a Government
Hospital. The respondents have refused to
acknowledge the Mahamana Pandit Madan
Mohan Malaviya Cancer Centre, Varanasi
as a Government Hospital, though an
establishment of TATA Memorial Centre,
which is a grant-in-aid institute of the
Department
of
Atomic
Energy,
Government of India.

Before proceeding to hear the
matter, this Court considers it appropriate
to know the stand of the Government. In
this regard, let the Principal Secretary,
Ministry
of
Urban
Development,
Government of U.P., Lucknow file his
personal
affidavit
by
Monday
i.e.
17.07.2023, answering all that is said by
this Court in the order dated 07.07.2023
extracted above."
2 All. Ram Prasad Dwivedi Vs. The State of U.P. & Ors.
809

6. In compliance, the Principal
Secretary, Ministry of Urban Development,
Government of U.P., Lucknow has filed his
affidavit
dated
16.07.2023,
where
a
seemingly reasonable stand has been taken.
Before proceeding further, this Court must
remark that the Chief Engineer's stand in
the counter affidavit filed on behalf of
respondent Nos.2, 3 and 4 is far from one
that can be commended. He has raised an
objection that the petitioner has not
challenged the order dated 24.02.2022 and
has merely sought a mandamus. A writ
petition
under
Article
226
of
the
Constitution is essentially an equitable
remedy and if a case is made out, it does
not much matter which particular writ has
been sought by the petitioner, unless, of
course, the remedy sought is misconceived.
A writ of mandamus is a general writ of the
widest scope, which may be issued to
remedy injustice wherever found. The
objection taken by the respondents, under
the circumstances, is one stated to be
rejected. It is then averred in the counter
affidavit that the Rules of 2011 do not
automatically apply to the Nigam. These
have been adopted by the Board of
Directors of the U.P. Jal Nigam in its 164th
Meeting, and, with permission of the
Chairman of the U.P. Jal Nigam, an office
memorandum dated 28.06.2016 was issued
by the Managing Director, U.P. Jal Nigam
in order to give effect to the Rules of 2011.
A copy of the office memorandum dated
28.06.2016 has been referred to.

7. We have perused the office
memorandum dated 28.06.2016 issued by
the Managing Director, U.P. Jal Nigam. It
would be profitable to refer to the aforesaid
memo (relevant parts), which read:

"उत्तर प्रदेश जल ननगम के आदेश
सींख्या 55 / नचनकत्सा प्रनतपूनतद नदनाींक 09-021995 द्वारा नचनकत्सा व्ययों की प्रनतपूनतद तथा इस
िेतु अनग्रम की स्वीकृनत के सम्बन्ध में पुनरीनक्षत
प्रनिया लागू नकये जाने िेतु नदशा ननदेश ननगदत
नकये गये थे। जल ननगम के ज्ञाप सींख्या 138/
ए.सी. लेखा (सा0)/ नच0 प्रनत0/309/354/12
नदनाींक 18/01/2012 द्वारा पूिद ननगदत ज्ञापोीं के
िम में शासन के आदेश द्वारा जारी 'उत्तर प्रदेश
सरकारी सेिक (नचनकत्सा पररचयाद) ननयमािली
2011' को उत्तर प्रदेश जल ननगम के समस्त
कायदरत एिीं सेिाननिृत्त कानमदकोीं िेतु प्रनिया एिीं
नचनकत्सा प्रनतपूनतद स्वीकृत करने के अनधकार
की सीमा तक लागू नकया गया। अग्रेतर उत्तर
प्रदेश जल ननगम के ज्ञाप सींख्या 2883 / ए.सी.
लेखा (सा0)/नच0 प्रनत0/309/354/14 नदनाींक
22/08/2014 द्वारा 'उत्तर प्रदेश सरकारी सेिक
(नचनकत्सा पररचयाद) (प्रथम सींशोधन) ननयमािली
2014' के कनतपय प्रानिधानोीं को ज्ञाप नदनॉक
18/01/2012 के िम में प्रनतस्थानपत नकया गया।

उत्तर प्रदेश जल ननगम ननदेशक
मींडल की 160िीीं बैठक में नलये गये ननणदय के
अनुपालन में ज्ञाप सींख्या 1114 / ए.सी. लेखा
(सा0)/ नच0 प्रनत0 / 309/520 / 13 नदनाींक
06/06/2013 द्वारा नचनकत्सा प्रनतपूनतद नकये जाने
के सम्बन्ध में ननजी नचनकत्सालयोीं में इलाज एिीं
कनतपय निनशि बीमाररयोीं को छोड़कर अन्य पर
हुये व्ययोीं की प्रनतपूनतद पर प्रनतबन्ध लगाये गये।
अग्रेतर ज्ञाप सींख्या 2729/ ए.सी. लेखा (सा0)/
नच0 प्रनत0/309/520 / 13 नदनाींक 31/12/2013
एिीं 2145 / ए.सी. लेखा (सा0 ) / नच0 प्रनत0 /
309/520/15 नदनाींक 18/09/2015 द्वारा प्रनतबन्धोीं
को नशनथल करते कुछ और गम्भीर ि निनशि
बीमाररयोीं को प्रनतपूनतद िेतु सक्तिनलत नकया
गया।

उत्तर प्रदेश जल ननगम ननदेशक
मींडल की 164िीीं बैठक (मद सींख्या 164.34) में
ननदेशक मींडल की 160िीीं बैठक में लगाये गये
प्रनतबन्धोीं को समाप्त नकया गया िै तथा मद
सींख्या 164.32 द्वारा स्वीकताद प्रानधकारी का
पुनदननधादरण नकया गया िै। जल ननगम द्वारा
810 INDIAN LAW REPORTS ALLAHABAD SERIES
नचनकत्सा व्ययोीं की प्रनतपूनतद तथा इस िेतु अनग्रम
की स्वीकृनत के सम्बन्ध में पूिद में ननगदत समस्त
कायादलय ज्ञापोीं / आदेशोीं को अनतिनमत कर
उनमें दी गई व्यिस्थाओीं को समेनकत कर
अध्यक्ष, उत्तर प्रदेश जल ननगम की अनुमनत से
जल ननगम के सेिारत / सेिाननिृत्त कानमदको िेतु
नचनकत्सा प्रनतपूनतद की ननम्न व्यिस्था लागू की
जाती िै:-

"3.3 निनशि उपचार

3.3.1 जनटल और गम्भीर बीमाररयोीं
के उपचार के नलए, नजनके नलए सरकारी
नचनकत्सालय या सींदनर्दत करने िाली सींस्थाओीं में
नचनकत्सा सुनिधा उपलब्ध निीीं िै, सींदनर्दत करने
िाली सींस्था के आचायद या निर्ागाध्यक्ष या
सरकारी नजला नचनकत्सालय के मुख्य नचनकत्सा
अधीक्षक या नजले के मुख्य नचनकत्सा अनधकारी
से अन्यून श्रेणी के उपचारी नचनकत्सक द्वारा
निनशि और नचनकत्सा पररचयाद के नलए रोगी को
ऐसे ननजी नचनकत्सालय या सींस्था को नजसे राज्य
अथिा केन्द्र सरकार द्वारा मान्यता प्राप्त िो
सींदनर्दत नकया जा सकता िै।

3.3.2 ऐसे ननजी नचनकत्सालय या
सींस्था में उपचार पर व्यय की प्रनतपूनतद िास्तनिक
व्यय या राज्य के र्ीतर उपचार के नलए सींजय
गाूँधी स्नातकोत्तर आयुनिदज्ञान सींस्थान लखनऊ
की दरोीं या राज्य के बािर हुए उपचार के नलए
अक्तखल र्ारतीय आयुनिदज्ञान सींस्थान, नई नदल्ली
की दरोीं तक, जो र्ी कम िो, सीनमत िोगी।

3.3.3 ऐसे उपचार या जॉच नजनके
नलए सींजयगाींधी स्नातकोत्तर आयुनिदज्ञान सींस्थान,
लखनऊ या अक्तखल र्ारतीय आयुनिदज्ञान
सींस्थान, नई नदल्ली में सुनिधा निद्यमान न
िो, पर हुए व्ययोीं की प्रनतपूनतद िास्तनिक
आधार पर की जायेगी प्रनतबन्ध यि िै नक
उपचार देश के र्ीतर कराया गया िो।
3.3.4 उक्तानुसार ननजी नचनकत्सालयोीं में
उपचार कराये जाने िेतु अध्यक्ष, उ0प्र0
जल
ननगम
की
पूिादनुमनत
आिश्यक
िोगी।" (emphasis by Court)

8. This Court is of opinion that it
would also be of relevance to refer to
Paragraph Nos.1.11 and 1.12 of the Scheme
for reimbursement framed vide memo
dated 28.06.2016. These read:

"1.11 सींदनर्दत करने िाली सींस्था, का
तात्पयद सर्ी राजकीय नचनकत्सालय / नचनकत्सा
मिानिद्यालय, KGMU लखनऊ सींजय गाूँधी
स्नातकोत्तर आयुनिदज्ञान एिीं अनुसींधान सींस्थान
(SGPGIMS) लखनऊ, डा0 राम मनोिर
लोनिया आयुनिदज्ञान सींस्थान लखनऊ, ग्रामीण
आयुनिदज्ञान एिीं अनुसींधान सींस्थान, सैफई,
इटािा, इींस्टीट्यूट ऑफ मेनडकल साइींस
िाराणसी (बनारस निन्दू निश्वनिद्यालय), जिािर
लाल नेिरू नचनकत्सा मिानिद्यालय (अलीगढ
मुक्तिम निश्वनिद्यालय). अलीगढ और सरकार
द्वारा इस रूप में अनधसूनचत नकसी अन्य सींस्था
से िै,

1.12 "राज्य" का तात्पयद उत्तर प्रदेश
राज्य से िै,"

9. What we find from a reading of the
Scheme framed by the Managing Director
vide memo dated 28.06.2016 is that the
Rules of 2011 have indeed been adopted by
the Board of Directors of the U.P. Jal
Nigam. The earlier restrictions that were
imposed
regarding
non-provision
of
medical
reimbursement
for
treatment
availed at private hospitals have also been
relaxed and expenses incurred in treatment
availed at private hospitals, can also be
reimbursed.
A
perusal
of
Paragraph
No.3.13 and its sub-paragraphs shows that
for the treatment of complicated and
serious diseases, where treatment is not
available with government hospitals or the
referring institutions, an employee or a
retired employee or other beneficiary under
the Scheme, may be referred by the
specified functionaries of a government
hospital or the referring institution to such
2 All. Ram Prasad Dwivedi Vs. The State of U.P. & Ors.
811
such private hospital for treatment, which
the State or the Central Government has
recognized. This is provided specifically in
sub-Paragraph No.3.3.1 of the Scheme
carried in the memo dated 28.06.2016. SubParagraph No.3.3.2 provides the rate of
reimbursement, which shall be limited to
the rate at which costs would be incurred at
the Sanjay Gandhi Postgraduate Institute of
Medical
Sciences,
Lucknow,
if
the
treatment is taken in a private hospital
within the State of Uttar Pradesh. The rate,
according to which reimbursement would
be made, if the treatment is taken in a
private hospital outside the State, is one
that would be in accord with the rates, the
treatment would cost if availed at the All
India Institute of Medical Sciences, New
Delhi. Sub-Paragraph No.3.3.3 of the
Scheme provides that if the treatment
necessary is not available with the SGPGI
or the AIIMS, the expenses incurred in the
treatment would be reimbursable to the
extent actually incurred at the private
hospital. Sub-Paragraph No.3.3.4 stipulates
that for the purpose of the Scheme in order
to avail treatment (which really means
reimbursement) at a private hospital, prior
permission of the Chairman of the Nigam
would be necessary.

10. This Court must remark that the
contention on behalf of the respondents
founded on their stand in the counter
affidavit filed on behalf of respondent
Nos.2, 3 and 4 that no reimbursement claim
can be entertained unless the Head of
Office/ Drawing and Disbursing Officer is
informed of the treatment being taken
within 30 days of its commencement as
required by sub-Paragraph No.3.1.2, is not
at all tenable. The reason is that Paragraph
No.3.1 of the Scheme, of which subParagraph Nos.3.1.2 is a part and envisages
a limitation of 30 days regarding intimation
to be given to the Head of Office from the
date of commencement of the beneficiary's
treatment, is one which deals with
treatment during emergencies. It has no
application to the case of special treatment,
that is the subject matter of Paragraph
No.3.3 of the Scheme. Special treatment
relates to complicated and serious ailments,
as already noticed. In Paragraph No.3.3 of
the Scheme and all its sub-Paragraphs,
there is no rule of limitation envisaged,
upon which learned Counsel for the
respondents has much harped to discredit
the petitioner's claim.

11. This Court does notice that there
are certain matters, which indeed have not
been observed in compliance by the
petitioner to claim reimbursement. There is
no recommendation by a government
hospital or a referring institution envisaged
under the Scheme, recommending the
petitioner's case for care in a private
hospital. The other is, that there is no prior
permission of the Chairman of the Jal
Nigam obtained by the petitioner. This
issue about non-referral by a competent
doctor representing the referring institution
or a government hospital was also a point
much
canvassed
on
behalf
of
the
respondents.
This
submission
is
not
altogether without force. At the same time,
we think that though in many a case, strict
adherence to Paragraph No.3.3 may be
necessary, but the rules there are not
inflexible. After all, the respondents do not
dispute the fact that the Board of the Jal
Nigam have adopted the Rules of 2011
conferring
the
benefit
of
medical
reimbursement upon their employees, the
retired employees and their families. The
regulation of that right through the Scheme
that
has
been
framed
vide
memo
28.06.2016 by the Managing Director with
the Chairman's permission, cannot be
812 INDIAN LAW REPORTS ALLAHABAD SERIES
construed in a manner that palpably
genuine claims are defeated for the nonobservance of a technicality. Many a time,
a genuine claimant may not be aware of the
requirements of this Scheme tucked away
in an office memo issued by the Managing
Director of the Jal Nigam. After all, it is not
a
statute
or
a
notification
of
the
Government,
of
which
constructive
knowledge may be attributed to one and all.
Even if it were, the Rules of 2011 being
adopted by the Jal Nigam and the Scheme
being one to regulate and effectuate the
rights of an employee or ex-employee to
claim medical reimbursement, the terms of
the
Scheme
must
receive
a
liberal
construction that advances its purpose. It
cannot and ought not to be construed
strictly against the employee denying him/
her the benefit of its coverage. The true test
is if the employee's or the ex-employee's
claim by evidence and upon verification is
a genuine case, where the facility of
medical
reimbursement
ought
to
be
extended.

12. The present case is one where the
petitioner is a 70 year old retired Assistant
Engineer and if the papers of his treatment
that he has annexed at Pages 15 to 49 of the
paper-book, are to be believed, he appears
to be a cancer patient, who has been
extensively treated at the MPMMCC, a unit
of Tata Memorial Centre, Mumbai. There
are documents of the expenses incurred in
the treatment as well. These are always
open to verification by the respondents,
which they could and must do before they
accept
the
petitioner's
claim
for
reimbursement. In a situation like the
present case, if the petitioner is indeed a
cancer patient, who in his old age, has
incurred substantial expense for treating
cancer, this Court does not think that the
few technical lapses in adhering to the
requirements of Paragraph No.3.3 of the
Scheme, carried in the memo dated
28.06.2016, should result in the rejection of
his claim.

13. This Court must also remark that
apart
from
the
other
technicalities
envisaged under Paragraph No.3.3, there is
also a stand taken on behalf of the
respondents that the petitioner has not
demonstrated
the
non-availability
of
treatment for his disease in any government
hospital or referring institution. This Court
thinks that faced with a disease, as dreadful
as cancer, where there are no second
chances that can be taken, trusting oneself
to the care of the MPMMCC, which is a
unit of the Tata Memorial Centre, Mumbai
is an unexceptionable course. The formality
of proving that the treatment is not
available in a government hospital, must
also be considered liberally and dispensed
with, where facts warrant. Once the
respondents accept the liability for medical
reimbursement, and there is a reasonable
safe treatment available with a reputed
specialized institution, treating cancer,
which is a unit of the Tata Memorial
Centre, Mumbai, to say that there is no
certification about treatment for the disease
not being available with a government
hospital, is a stand that can hardly be
accepted.

14. This Court is also mindful of the
fact that ex facie the petitioner has not
come up with a claim for his treatment, that
is extravagant or inflated. It seems to be a
reasonable expense for treatment of the
deadly disease. This Court would not have
hesitated to issue a mandamus straight
away,
ordering
the
respondents
to
reimburse the medical expenses, but
happily in the personal affidavit filed by the
Principal Secretary, Urban Development
2 All. Ram Prasad Dwivedi Vs. The State of U.P. & Ors.
813
Department,
Government
of
U.P.,
Lucknow, there is a very candid stand
taken,
which
we
do
appreciate.
In
Paragraph Nos.9 and 10 of the personal
affidavit, it is averred:

"9. That it has also been assured
in the attached report of the Managing
Director, U.P. Jal Nigam (Urban) that if the
claim
of
medical
reimbursement
is
submitted again by the petitioner on the
prescribed proforma, its examination will
be done as per the provisions of office
28.06.2016 dated 28.06.2016 thereafter,
further memorandum dated proceeding will
be initiated.

10.
That
after
proper
consideration of the documents of the case,
answering respondent no.1 is of the opinion
that while the office memorandum dated
28.06.2016 regarding the permissibility of
reimbursement of medical expenses with
the approval of the Board of Directors of
U.P. Jal Nigam is effective, then the entire
reimbursement claims should be examined
under the provisions of the said office
memorandum and not under another office
memorandum dated 13.07.2020 issued by
the Managing Director without making any
reference of the said office memorandum
dated 28.06.2016. As assured in the report
of U.P. Jal Nigam (Urban), examination of
the petitioner's claim will be done under the
provisions of the office memorandum dated
28.08.2016, if submitted again, necessary
instructions have also been given to the
Managing Director, Uttar Pradesh Jal
Nigam (Urban) by the Government on
14.07.2023 itself. Copy of the instruction
issued by the Government is being filed
herewith and marked as Annexure No.
PA-2 to this affidavit."

15. There is also on record memo No.
246/9-3-2023
issued
by
the
Special
Secretary,
Government
of
U.P.
and
addressed to the Managing Director, U.P.
Jal Nigam (Urban), Lucknow. This memo
has been issued specifically with reference
to the petitioner's case and in deference to
the directions issued by this Court in the
present writ petition at interlocutory stages.
The relevant part of the memo dated 14th
July, 2023 reads:

 "3. प्रकरण से सम्बक्तन्धत अनर्लेखोीं
के अिलोकनोपरान्त यि क्तस्थनत सामने आई िै
नक याची (श्री राम प्रकाश नद्विेदी) के नचनकत्सा
व्यय प्रनतपूनतद दािे का परीक्षण उ0प्र0 जल
ननगम के ननदेशक मण्डल के अनुमोदनोपरान्त
ननगदत का0ज्ञा0 नदनाींक 28.06.2016 के प्रािधानोीं
के अन्तदगत नकया जाना अपेनक्षत िै। अतैंः
तदनुसार आिश्यक कायदिािी कराने का कि
करें । साथ िी नचनकत्सा व्यय प्रनतपूनतद के
पररप्रेक्ष्य में प्रबन्ध ननदेशक, उ0प्र0 जल ननगम
के िस्ताक्षर से ननगदत कायादलय ज्ञाप नदनाींक
13.07.2020 की अद्यतन प्रासींनगकता पर र्ी
समग्र रूप से निचार कर आिश्यक कायदिािी
कराई जाय, निशेष रूप से यि देखते हुए नक
कायादलय ज्ञाप नद0 28.06.2016 में ननजी
नचनकत्सालयोीं में र्ी नचनकत्सा की अनुमन्यता की
गई िै।"

16. Looking to the stand of the
Principal Secretary and the Government in
the matter, this Court is of opinion that
ends of justice would be met by requiring
the petitioner to submit his claim afresh in
the prescribed proforma, annexed as
Schedule
'ख'
to
office
memo
No.2126/एसी.लेखा.
(सा.)/नच.प्रनतपूनतद/309
dated 28.06.2016, issued by the Managing
Director, U.P. Jal Nigam, Lucknow within
a month of the date of receipt of a certified
copy this judgment to the Chief Engineer
(Prayagraj Zone), U.P. Jal Nigam (Urban),
Prayagraj. The same shall be transmitted
814 INDIAN LAW REPORTS ALLAHABAD SERIES
forthwith to the competent Authority, who will take
appropriate steps to consider sanctioning medical
reimbursement to the petitioner, bearing in mind the
guidance in this judgment and the stand taken in
Paragraph Nos.9 and 10 of the Principal Secretary's
affidavit dated 16.07.2023. The petitioner's claim
shall be disposed of within a period of one month of
the date that it is submitted by the petitioner to the
Chief Engineer, as directed hereinabove.

17. This writ petition is allowed in
part in terms of the above orders.

18. There shall be no order as to costs.
----------
(2024) 2 ILRA 814
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.02.2024

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ - A No. 8963 of 2023

Anjesh son of Late Radhey Giri
 ...Petitioner
Versus
F.C.I. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Pankaj Kumar Asthana, Sri Pradeep
Kumar Srivastava

Counsel for the Respondents:
Hari Narayan Singh, Sri Santosh Kumar
Mishra

A. Compassionate Appointment - Dying in
Harness - Date of death relevant - Later
declaration of "dying cadre" irrelevant -
Scheme applicable is one in force on date
of death.
Held: The dependent's right to be considered for
compassionate appointment crystallizes on the
date of death of the employee in harness. The
subsequent declaration of the employee's cadre
as a "dying cadre" cannot extinguish that right.
The relevant scheme is the one in force on the
date of death, not one subsequently introduced
or modified.(Paras 16, 17, 19, 20, 21, 22, 25)

B.
Food
Corporation
of
India
-
Departmental Labour System - Declared
dying cadre w.e.f. 03.01.2020 - Father of
petitioner died in 2009 - Claim already
recommended by Committee in 2010 -
Petitioner's
case
must
be
considered
under scheme applicable on 21.01.2009.

Held: Since the employee died much
before the cadre was declared dying, and
the
Compassionate
Appointment
Committee
had
already
found
the
petitioner's
case
fit
in
2010,
the
declaration of the cadre as dying in 2020
cannot
defeat
petitioner's
claim.
Respondents' refusal on this ground is
unsustainable.(Paras 21, 22, 24, 25, 26)

C. Appointment on Compassionate Ground
-
Object
-
To
provide
immediate
succour to bereaved family - Economic
crisis
relevant
-
Cadre
classification
irrelevant.
Held: The essential object is to relieve sudden
financial hardship of dependents. The fact that
the deceased employee belonged to a cadre
later abolished or declared dying is wholly
irrelevant. What matters is that a scheme for
compassionate appointment was in force at the
time of death. (Paras 17, 19, 20, 26)

RESULT

Writ Petition Allowed - Mandamus
issued
to
respondents
to
consider
petitioner's
case
for
compassionate
appointment
within
six
weeks
in
accordance
with
law
and
guidance
contained in this judgment. No order as
to costs.

List of Cases cited:

1. Secretary to Government Department of
Education
(Primary)
Vs
Bheemesh
alias
Bheemappa, (2021) 20 SCC 707.

2. Court on its Own Motion Vs U.O.I., (2016) 2
Mah
LJ
647.