2017 PLP (C (PLC(CS)N)

QALANDAR ALI KHAN, J.

Muhammad Rustam, Private Secretary, Peshawar High Court, Abbottabad Bench (since retired), petitioner, invoked the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, for a direction to the respondents, particularly, respondent No.1 i.e. Government of Khyber Pakhtunkhwa, through, Secretary Finance, Finance Department, Peshawar, to make provisions for additional grant under head Medical Charges for reimbursement of medical expenses of Rs.945,486/- borne out by the petitioner on the treatment of his deceased daughter.

2. The daughter of the petitioner, namely Mehwish Rustam, a student of LLB Final year, fell ill and was treated in the DHQ Hospital, Ayub Medical Complex, Abbottabad, as well as in the Institute of Nuclear Medicines, Oncology and Radiology (INOR) Hospital, Abbottabad, for "internal infections"; but her condition deteriorated day by day, therefore, she was referred to Shifa International Hospital, Islamabad, for surgery and treatment by the concerned Medical Officer at INOR Hospital on 12.12.2014. The biopsy of the stomach of the daughter of the petitioner was conducted and the material obtained was sent to the laboratory of Shoukat Khanum Memorial Cancer Hospital and Research Centre, Lahore, where-from the report was received in positive. Besides all the expert specialized doctors of the Government Hospitals, even the doctors of Shoukat Khanum Memorial Cancer Hospital and Research Centre, Peshawar, rejected her in view of her deteriorated critical condition of ailment and proposed/suggested her treatment from Shifa International Hospital, Islamabad. Thereafter, the patient was straightaway taken to Shifa International Hospital, Islamabad, on 22.12.2014, where she was admitted and extended chemotherapy followed by surgery, thus, incurring lot of expenses on her treatment by the petitioner. The Medical bills were submitted for reimbursement, and the Director General, Health Services, Khyber Pakhtunkhwa, Peshawar, also accorded N.O.C., but when the medical bills were referred to respondent No.1 for allocation of additional grant under head 'medical charges', respondent No.1 showed his inability to accede to the proposals; and again expressed his inability to the proposal when the petitioner once again applied for allocation of additional grant under head 'medical charges' in the light of circular letter of the Finance department dated 17.09.2015; hence, the instant writ petition.

3. In their comments, both the respondents contested the writ petition, mainly, on the ground that the medical treatment in private hospital was not covered under the Medical Attendance Rules, 1959, therefore, the request for release of fund under the head of 'medical charges' was regretted when the proposal was received through Registrar, Peshawar High Court, Peshawar. The respondents pointed out that there was no provision in the Medical Attendance Rules, 1959 for issuance of Ex-post Facto Sanction by the Director General, Health Services, Khyber Pakhtunkhwa, Peshawar, for treatment in private hospitals. It was further pointed out that a certificate from the Medical Superintendent of the concerned Health Institution/Director General, Health Services, was required mentioning therein that the treatment facilities were not available in any government hospital, which was not forthcoming in the instant case. The respondents explained that in the case of Syed Jhafar Shah Bukhari, a student of Engineering University, Peshawar, referred to as a precedent case in the writ petition, the Chief Minister Secretariat had issued directives to the Health department and on approval of the summary by the Chief Minister, moved by the Health department, the Finance Department had allocated funds as 'Grant-in-Aid' to Health Department.

4. Since the local Bar was observing strike, the petitioner in person and learned Additional Advocate General on behalf of the respondents argued the case, and record was also perused.

5. The rest of the facts including treatment of daughter of the petitioner for her serious ailment of cancer in the Shifa International, are not denied by the respondents; but their resistance to the claim of the petitioner and release of funds under head of Medical Charges is based on the twin grounds of treatment of the patient from a private hospital and absence of any provision in the Medical Attendance Rules, 1959 for issuance of Ex-post Facto Sanction by the Director General, Health Service, Khyber Pakhtunkhwa, Peshawar, for treatment in private hospitals.

6. Apart from the fact that N.O.C. was duly accorded by the Director General, Health Services, Khyber Pakhtunkhwa, Peshawar, vide office order dated 18.08.2015, for medical attendance and further treatment of daughter of the petitioner in Shifa International, Hospital, Islamabad, as referred by ATH, Abbottabad, in a recent judgment dated 12.01.2016 in Writ Petition No.3720-P of 2015 by an Hon'ble Division Bench at the Principal seat of this Court, both the issues of treatment in the Shifa International Hospital, Islamabad, and competency of the Director General, Health Services, to accord Ex-post Facto Sanction under the West Pakistan Government Servants (Medical Attendance) Rules, 1959, were elaborately dealt with and resolved in favour of petitioner in the writ petition, with direction to the respondents to reimburse the medical charges incurred by the petitioner on the treatment of his daughter.

7. The learned Additional Advocate General, on the other hand, submitted a copy of judgment/order dated 17.03.2016 of this Court in COC No.111-P of 2016 by the petitioner, Tariq Hassan, in the said Writ Petition No.3720-P/2015, whereby, it was held that the payment of an amount of Rs.7,805,930/- received by the petitioner shall be recoverable from his immovable/ movable properties including his pensionary benefits in case the Supreme Court reversed the order of this Court dated 12.01.2016 rendered in Writ Petition No.3720-/2015 on the Government petition filed before the Apex Court. In other words, the only contention of the learned Additional Advocate General was that payment of amount of Rs.7,805,930/- to the petitioner in the aforementioned writ petition was made conditional to the decision of the Apex Court in the CPLA filed by the Government before the Apex Court.

8. It needs be stressed here that not only the amount claimed by the petitioner in the instant writ petition amounting to Rs.945,486/- is paltry as compared to the huge amount of Rs.7,805,930/- claimed by the petitioner in the aforesaid writ petition; but case of the petitioner is squarely at par with the case of the said petitioner. Therefore, on the acceptance of the instant writ petition, the respondents are directed to accord sanction for allocation of additional grant under head 'medical charges' for reimbursement of medical expenses of Rs.945,486/- borne out by the petitioner on the treatment of his deceased daughter; subject to the condition that the payment so received by the petitioner shall be subject to return by him in case the judgment/order of this Court in Writ Petition No.3720-P/2015 dated 12.01.2016 or for that matter this judgment/order of the Court is reversed by the august Apex Court. ZC/214/P Order accordingly.