2016 PLP (C (PLC(CS))

QALANDAR ALI KHAN, J.

Since identical issues are involved in the instant writ petition as well as in Writ Petition No.983-A/2015, this single judgment/order shall also dispose of the said connected writ petition.

2. In this writ petition, by invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Abdul Baseer, an Additional District and Sessions Judge in the Judicial Department of the Government of Khyber Pakhtunkhwa and presently posted at Abbottabad, prayed for a direction to the respondents to reimburse the medical charges in respect of his ailing father under West Pakistan Government Servants (Medical Attendance) Rules, 1959. It was averred in the writ petition that father of the petitioner was facing problem of gross Hematuria, but the doctors in the Kidney Centre, Peshawar, wrongly diagnosed the same as a minor problem of prostate and advised him to wait for months due to a long waiting list. The Medical officer specialized in urology at Shifa International Hospital, Islamabad, however, discovered that the patient was not suffering from prostate problem rather he had malignant cancer of urinary bladder, requiring radical Cystectomy on emergency basis. The Assistant Professor Urology, Ayub Teaching Hospital, Abbottabad, where the petitioner was posted, informed that the procedure could not be conducted in ATH, Abbottabad; and referred father of the petitioner to specialist centre where facilities for the procedure were available. Therefore, while keeping in view the seriousness of the disease and its fast spreading in the body, the surgery was conducted at Shifa International Hospital, Islamabad, on the advice of Medical Superintendent, Ayub Teaching Hospital, Abbottabad, and the expenses incurred there amounted to Rs.715,260/-. The Director General, Health Services, Khyber Pakhtunkhwa, Peshawar, also accorded Ex-post Facto Sanction under Rule 6(1)(b) of the West Pakistan Government Servants (Medical Attendance) Rules, 1959, and after fulfilling the other legal formalities, the bill of medical charges was submitted by the petitioner through the Peshawar High Court to the Secretary Finance, Government of Khyber Pakhtunkhwa, Peshawar, for provision of additional grant under head 'Medical Charges'; but claim of the petitioner was rejected even after Ex-post Facto Sanction was accorded by the Director General, Health Services, being the competent authority.

3. In the connected Writ Petition No.983-A/2015, the petitioner, Ms. Qurrat-ul-Ain Rashid, a Civil Judge/Judge Family Court in the Judicial Department of Khyber Pakhtunkhwa and posted at Abbottabad, claimed her entitlement for reimbursement of medical charges amounting to Rs.373,900/- incurred on account of treatment of her mother, who was brought with chest pain to Ayub Teaching Hospital, Abbottabad, but was referred by Dr. Umar Hayat, Head of Cardiology Department, Ayub Teaching Hospital, Abbottabad, for earliest angiography on 5.12.2014 as Angiography Machine of Ayub Teaching Hospital was non functional and the facility was also not available on emergency basis in the adjoining districts of Mansehra and Haripur; therefore, the appointment was finally secured from Col. (Retd.) Dr. Najib-ul-Haq in Hearts International (Pvt.) Limited, Rawalpindi. The reference by the Head of Cardiology Department, Ayub Teaching Hospital, was also countersigned by the Medical Superintendent of the hospital, and patient was referred to Hearts International (Pvt.) Limited, Rawalpindi, on 8.12.2014, where angiography and angioplasty of mother of the petitioner was done by the said Doctors where-after the patient was discharged from the hospital on 09.12.2014. The expenses incurred by the petitioner on the treatment of her mother in the said hospital amounted to Rs.373,900/-, and the medical bills on that account were forwarded through the Registrar, Peshawar High Court, Peshawar, to the Director General, Health Services, Khyber Pakhtunkhwa, Peshawar, for Ex-Post Facto Sanction, which was regretted by the latter on the ground that ban had been imposed on treatment in Private hospitals by the provincial government under the new policy dated 4.12.2014, which was also impugned in the connected writ petition.

4. In their comments in both the writ petitions, the respondents took the plea that patients in both the cases were not referred to a private hospital as required under clause 6 of the Medical Attendance Rules, 1959, and further that the Director General, Health Services, was not competent to accord Ex-Post Facto Sanction in case of father of the petitioner in the instant case. The respondents also disputed claims of the petitioner on the ground of receiving treatment of their father and mother, respectively, even before the patients were referred for treatment in other hospitals where the requisite facilities were available.

5. Arguments of learned counsel for the parties heard, and record perused.

6. The treatment of the father and mother, respectively, of the petitioners in both the writ petitions, for their serious ailment of cancer of urinary bladder and cardiac problem in private hospitals, namely, Shifa International Hospital, Islamabad in the former case and Hearts International (Pvt.) Limited, Rawalpindi, in the latter case is not denied; but entitlement of the petitioners to reimbursement of the amount incurred by the petitioners on the treatment of their parents is disputed, mainly, on the ground of treatment in private hospitals without prior sanction of the competent authority.

7. The matter of treatment in private hospitals and Ex-Post Facto Sanction for the purpose came up before this Court at the principal seat in W.P. No.3720-P/2015 titled Tariq Hassan v. Govt. of Khyber Pakhtunkhwa, through, Chief Secretary, Civil Secretariat, Peshawar, and others, and an Hon'ble Division Bench at Peshawar resolved the issues raised in the writ petition in favour of the petitioner by issuing direction to the respondents to reimburse the medical charges incurred by the petitioner on the treatment of his daughter, vide judgment/order dated 12.01.2016; and following the said judgment/ order, this Bench also accepted Writ Petition No.1180-A of 2015 titled Muhammad Rustam v. Govt. of KPK etc. vide judgment/order dated 09.05.2016, and directed the respondents 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 the judgment/order dated 09.05.2016 in Writ Petition No.1180-A of 2015 were reversed by the august Apex Court.

8. Needless to say that Rules 3 and 6 of West Pakistan Government Servants (Medical Attendance) Rules, 1959, clearly laid down that Government Servants would be entitled to free of charge medical treatment by Authorized Medical Attendant or otherwise any amount paid by them on account of such treatment shall be reimbursed to them subject to production of a certificate in writing by the Authorized Medical Attendant. Admittedly, in the instant case, Ex-post Facto Sanction was accorded for treatment of ailing father of the petitioner, suffering from malignant cancer of urinary bladder and thus requiring radical Cystectomy on emergency basis from Shifa International Hospital, Islamabad; while in the connected case (W.P.No.983-A/2015), the mother of the petitioner was referred by Head of Cardiology Department, Ayub Teaching Hospital, Abbottabad, duly countersigned by the Medical Superintendent ATH, Abbottabad, for angiography and angioplasty, as Angiography Machine of Ayub Teaching Hospital was non-functional, and the angiography and angioplasty of the mother of the petitioner was done by Col. (Retd) Doctor Najib-ul-Haq in the Hearts International (Pvt.) Limited, Rawalpindi. Therefore, there could possibly be no valid objection to treatment in private hospitals simply because the same was disallowed by Secretary Administration vide a letter dated 04.12.2014 to the Director General Health Services, especially, when the rules allowed treatment of the Government Servants and their entitled relations at private hospitals in case of non-availability of the facilities in the Government Hospital(s); and the requisite N.O.C./sanction is also granted by the competent authority under the West Pakistan Government Servants (Medical Attendance) Rules, 1959. It needs be stressed here that administrative letter/direction cannot override the express provisions of the ibid Rules without amendment in the rules giving effect to such direction.

9. Anyhow, the provincial government have filed Civil Petition in the august Apex Court against the judgment of this Court dated 12.01.2016 in W.P. No.3720-P of 2015, therefore, the reimbursement of medical charges incurred by the petitioner in Writ Petition No.1180-A of 2015 was also made subject to the condition that the payment so received by the petitioner shall be subject to return by him in case the judgment/order in Writ Petition No.3720-P/2015 dated 12.01.2016 or judgment dated 09.05.2016 in Writ Petition No.1180-A of 2015 was reversed by the august Apex Court. At this juncture, the learned Additional Advocate General also prayed for making the direction for reimbursement of medical charges in favour of the petitioners in these two writ petitions subject to judgment of the Apex Court in Writ Petition No.3720-P/2015 dated 12.01.2016.

10. Consequently, on the acceptance of both these writ petitions, the respondents are directed to allocate funds under head `Medical Charges' for reimbursement of medical expenses incurred by the petitioners on treatment of their parents; subject to the condition that the payment so received by the petitioners shall be liable to return by them in case judgments/orders of this Court in this respect are reversed by the august Apex Court. ZC/244/P Petition allowed.