Rajasthan High Court - Jaipur
Shankerlal vs State Of Rajasthan & Ors. on 7 August, 2000
Equivalent citations: 2000(3)WLC585, 2001(1)WLN1
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
ORDER Hon'ble Balia, J.
1. This appeal is directed against the order dated 12.4.1999 passed by the learned single Judge in S.B. Civil Writ Petition No. 1135 of 1997 filed by the petitioner-appellant whereby the writ petition has been dismissed.
(2). The brief facts of the case are: that the petitioner- appellant at the relevant time was working as Upper Division Clerk in the Office of District Transport Officer, Hanumanagarh. After applying four days leave, he went to Delhi on 18.6.1996 alongwith his wife for some domestic work. This fact was stated in his leave application while in Delhi that on 19.6.1996, the petitioner's wife developed some cardiac trouble and, therefore, she was taken to Escorts Heart Institute and Research Centre, Delhi, an institution which is recognised for treatment of complicated heart ailments by the State of Rajasthan where she was admitted in Emergency with a diagnosis of DCM LBBB and (gross) congestive cardiac failure and EF 20%. She was stablized and her cardiac cath study, was performed and was advised for her open heart surgery costing approximately Rs. 2 Lakhs. The petitioner-appellant moved an application from Delhi on the next day informing the concerned authorities that due to sudden cardiac problem, his wife has been admitted to Escorts Heart Institute and Research Centre, Delhi with complete details of treatment. He also moved an application for necessary sanction of an advance payment of Rs. 2 Lacs for medical treatment of his wife from Delhi on 25.6.1996 but the same was not granted to him. Since the health condition of petitioner's wife was deteriorating day by day and therefore, her open heart surgery was performed on 9.7.1996 and the total expenditure on medicines and operation came to Rs. 2,06,860/-. Unfortunately the operation of the petitioner's wife failed and she died on 12.7.1996 in the Hospital itself.
(3). Thereafter, the petitioner moved an application before the concerned authorities for reimbursement of expenses incurred for the medical treatment of his wife at Escorts Heart Institute and Research Centre, Delhi alongwith the Certificate (Annex.7) dated 5.7.1996 issued by the Executive Director, Escorts Heart Institute and Research Centre, New-Delhi certifying that the wife of the petitioner was admitted to the Emergency Room on 19.6.1996 in the state of a gross congestive cardiac failure and subsequent evaluation based on echocardiagraphic and coronary angiography revealed 'Diolated Cardiomyopathy' and therefore, she was placed for 'Reduction Ventriculoplasty' a newly established surgical procedure which may help in improving her clinical status and ejection fraction.
(4). However, the petitioner's claim for reimbursement of Rs. 2,06,860/- was rejected vide Order (Annexure/10). Only ground disclosed in the communication is that since the petitioner has not got the treatment of his wife in a Government Hospital, the expenses incurred by him on the treatment of his wife cannot be reimbursed. Aggrieved with the refusal to reimburse the expenses incurred on treatment of his wife vide (Annex.10), the petitioner-appellant filed the aforesaid writ petition before this Court for the issuance of a writ of mandamus to the respondents for reimbursement of Rs. 2,06,860/-, which was spent by him on the treatment of his wife.
(5). A reply to the show cause notice was filed on behalf of the respondents, wherein it was contended that the petitioner ought to have contacted the Government Hospital either of the Central Government or of the State Government before availing of treatment in Escorts Heart and Research Centre, New-Delhi. It was submitted that as per Rule 7(1) of the Rajasthan Civil Services (Medical Attendance) Rules, 1970 (for short 'the Rules'), the Govt. employee or his family member will have to obtain the certificate that no treatment of the disease is available in the State. Under Sub-Rule (3) of Rule 7 list of Hospitals outside the State is given and as per Sub-Rule (4), the reimbursement of the amount is to be made on submission of the original receipts, vouchers duly attested by the Medical Officer, who had referred the case. The petitioner has not followed the procedure required under the Rules and, therefore, he is not entitled to reimbursement. However, the fact that Escorts Heart Institute and Research Centre is an approved Institute/Hospital for the purpose of treatment of heart ailment outside the State of Rajasthan is not denied. It was also stated that Escorts Heart Institute and Research Centre is not authorised to give certificate to the effect that no such medical treatment is available in the State of Rajasthan and that of the Delhi State. Such certificate can only be given by the Medical Officer of the Central/ State Govt. Hospitals. It was submitted that in Delhi, there is a Govt. Institute known as All India Institute of Medical Sciences, New-Delhi, (for short 'AIIMS') which is a Govt. Hospital. According to the respondents, if the certificate would have been obtained from the said AIIMS, then there was no reason to deny the claim of reimbursement to the petitioner. No serious dispute has been raised about the fact that petitioner was spending his leave at Delhi where his wife fell sick and she was given medical attendance and treatment at Escorts Heart Institute and that she underwent open heart surgery as indoor patient at that Institute and that ultimately she died on 12.7.1996.
(6). After considering the aforesaid submissions, the learned single Judge vide his Order dated 12.4.1999 dismissed the writ petition filed by the petitioner holding that a person can seek reimbursement if the case has been referred to the Hospital outside the State by a competent Medical Authority of the State and in case, the Patient suffers the ailment outside the State of Rajasthan, he must obtain such a certificate from the Government Hospital i.e. the Authority mentioned in Rule 6(2) of the Rules. The decisions of this Court in Khuman Singh Mehta vs. State of Rajasthan and Ors. (1) and Shyam Singh vs. The State of Rajasthan and Ors. (2) were considered to be not applicable to the facts of the present case.
(7). Dissatisfied with the impugned order dated 12.4.1999 passed by the learned Single Judge of this Court, the petitioner has filed the present special appeal.
(8). It has been contended by the learned counsel appearing for the petitioner-appellant that petitioner's wife suffered heart- ailment at New-Delhi, outside the State of Rajasthan. Therefore, there was no occasion for him to have obtained a certificate from the Principal of any Medical Colleges or Director, Medical & Health Services on the basis of the opinion of the Authorised Medical Attendant to the effect that treatment of a particular disease from which the patient was suffering was not available in any Government Hospital in the State and it is absolutely essential for the recovery of the patient to have treatment at a Hospital outside the State. It was also contended by the learned counsel for the petitioner that self preservation by obtaining appropriate medical relief in emergency situation is a part of fundamental right to life guaranteed under Art. 21 of the Constitution of India and if a Government servant or any member of his family depending on him, who is otherwise entitled to reimbursement of the medical expenses obtains such medical assistance in emergency outside the State, he is entitled to be reimbursement of his actual medical expenses incurred on the treatment of the patient and reimbursement cannot be denied to him merely on the basis of the procedural requirement.
(9). Mr. P.R. Singh, the learned counsel for the appellant placed reliance on the decisions of the Supreme Court in Surjit Singh vs. State of Punjab and Others (3) and State of Punjab & Ors. vs. Mohinder Singh Chawla etc. (4), Shyam Singh vs. State of Raj. & Ors. (supra) and Khumansingh Mehta vs. State of Rajasthan and Ors. (supra).
(10). Mr. R.P. Dave, the learned counsel for the respondents has contended that reimbursement of medical expenses is governed by the Rules of 1970 and since the petitioner has not followed the Rules, he is not entitled to reimbursement of expenses incurred on the treatment of his wife at Escorts Heart Institute and Research Centre, New-Delhi in absence of certificate as required by Rule 7 (1) of the Rules.
(11). We have heard Mr. P.R. Singh, the learned counsel appearing for the petitioner-appellant and Mr. R.P. Dave, the learned counsel for the respondents and have carefully gone through the record of the case.
(12). The benefit of concession in relation to medical treatment of an employee of the State is governed by Rules of 1970. A brief scanning of rules will be profitable. Under Rule 3, a Govt. Servant is the entitled to medical attendance and treatment free of charge in accordance with the Rules. Under sub-clause (ii) of Sub-rule (2) of Rule 3, the details of expenses which are reimburseable have been enumerated. Rule 4(1) provides for concession extended to a Govt. servant who is treated as indoor patient of a Govt. Hospital in the mailer of charges for accommodation as indoor patients. Sub-Rule (2) provides that a Govt. servant treated as an outdoor patient at any Govt. Hospital is entitled to concession enumerated in Rule 3 Sub-Rule (3) envisages in the circumstances a Govt. servant can receive medical attendance and treatment at his residence for the purpose of Rule 3. Likewise a Govt. servant falling sick at a place away from his head quarters of Authorised Medical Attendant, he is entitled to travelling allowance to and for the place of the head quarters of such authorised medical attendant. Rule 5 extends the same benefit of medical attendance and treatment to members of family of the Govt. servant. For the purpose of availing benefit of such concessions in respect of members of family it is not necessary that such members of the family of Govt. Servant resides with him. Rule 6 contemplates grant of benefit of medical attendance and treatment of a Govt. servant of State of Rajasthan and any members his family who is posted outside State, or is sent on duly outside State or is outside State at the time he falls ill while spending leave. Rule 7 envisages cases where a Govt. servant or any member of his family, who is suffering from any such disease for which treatment is not available in any Govt. Hospital in State of Rajasthan, he can avail of such treatment at any hospital outside State of Rajasthan. For this purpose availing medical treatment in such type of cases, the treatment can b e had at any hospitals or institutions mentioned in Appendix-II, under Rule 7(3). Rule 8 envisages grant of advance for medical treatment required to taken outside State of Rajasthan u/Rule 7. Rule 9 deals with procedure for claiming reimbursement and rule 10 envisages special concessions in case of Govt. servant suffering from tuberclosis of cancer.
(13). For the present purpose, Rule 6 and 7 become relevant, inasmuch as the petitioner's wife has received medical attendance and treatment for heart ailment which required open heart surgery, while the petitioner with his family was spending leave outside State of Rajasthan at Delhi and his wife has fallen sick at Delhi. She received medical attendance and treatment requiring open heart surgery at Escorts Heart Institution in Delhi, which is recognised for such treatment by the State of Rajasthan.
(14). Here, it would be appropriate to reproduce the provisions of Rule 6 & 7 of the Rules in extenso:
"Rule 6. Medical attendance and treatment outside Rajasthan -(1) A Government servant including members of his family posted to a Station or sent on duty or spending leave or otherwise at a station outside Rajasthan and who falls ill shall be entitled to free medical attendance and treatment as an indoor and outdoor patient in a Hospital maintained by the Central Government or other State Government on the scale and conditions which would be admissible to him under these rules, had he been on duty or on leave in Rajasthan.
(2) For the purpose of this rule "Authorised Medical Attendant" in respect of a Government servant or class of Government servants at a station outside Rajasthan shall mean an Officer of Medical Department of Central or other State Government as the case may be on duty in a Government Hospital or Dispensary at that station.
(3) The charges paid by the Government servant posted at Delhi to the following private hospitals/clinics for X-ray, Pathological, Bacteriological, Radiological tests and other kind of investigations which are considered necessary by the Doctor of the State Government posted in Delhi, shall be reimbursed:-
1. ..................
2. ..................
3. ..................
Rule 7. Treatment of a disease for which treatment is not available in the State (1) A Government servant and the members of his family suffering from a disease for which treatment is not available in any Government hospital in the State shall be entitled to medical alien-dance and treatment to the extent indicated in sub-Rule (2) of this rule in a Hospital/Institution outside the State recognised by the Government, provided that it is certified by the Principal of a Medical College/Director of Medical & Health Services on the basis of opinion of the Authorised Medical Attendant to the effect that the treatment of a particular disease from which the patient is suffering is not available in any Government Hospital in the State and it is considered absolutely essential for the recovery of the patient to have treatment at a hospital outside the State.
(2) The following charges/expenses shall be reimburseable:-
(a) Cost (including Sales Tax) of Allopathic Drugs, Medicines, Vaccines, Sera or other Therapeutic substances reimburseable under these Rules.
(b) Sums actually paid to the Hospital/Institution on account of medical attendance and treatment including charges for surgical operations and ordinary nursing facility.
(c) Travelling allowance for journey by rail/road from duly point at the station at which the patient falls ill to the place of treatment outside the State and back to a single fare of the class to which his classification entitles him under Rajasthan Travelling Allowance Rules. Such Travelling allowance shall also be admissible for an attendant, if the Authorised Medical Attendant certifies in writing that it is unsafe for the patient to travel unattended and that an attendant is necessary to accompany the patient to the place of treatment and back.
(3) The facility of medical attendance and treatment in the type of cases mentioned in sub-rule (1) can be had at any of Hospitals/Institutions mentioned in Appendix-II.
(4) For the purpose of reimbursement, the original receipts issued by such Hospital/Institutions and vouchers of medicines etc. shall be countersigned by the Authorised Medical Attendant of Government Hospital on whose advice the treatment outside the State was undertaken."
(15). The scheme of the Rules is very clear. Rule 6 primarily requires that a Government servant is entitled to reimbursement of such medical expenses which he has incurred as a result of treatment obtained as an Indoor or Outdoor patient in a Hospital managed by the Central Government or other State Government, if he is posted outside the State of Rajasthan or he is availing leave or spending time on duty in other State. The provisions of Rule 6 of the Rules have no application to the facts of the present case, so far as obtaining certificate for availing treatment in an approved Institute/Hospital outside the State of Rajasthan is concerned as the petitioner's wife suffered from severe heart attack at Delhi while the petitioner was availing his leave at Delhi. So he was entitled to avail medical attendance and treatment of his wife at Delhi a place outside State of Rajasthan on its own force.
(16). Rule 7 deals with treatment of a disease for which treatment is not available in the State. It clearly provides that a Govt. servant and the members of his family suffering from a disease for which treatment is not available in any Govt. Hospital in the State shall be entitled to medical attendance and treatment in a Hospital/Institution outside the State recognised by the Government provided that it is certified by the Principal of a Medical College/Director of Medical & Health Services on the basis of the opinion of the Authorised Medical Attendant to the effect that the treatment of a particular disease from which the patient is suffering is not available in any Govt. Hospital in the State and it is considered absolutely essential for the recovery of the patient to have treatment at a Hospital outside the State. So far as the provision of Rule 7 requiring certification by the Principal of a Medical College/Director of Medical & Health Services on the basis of the opinion of the Authorised Medical Attendant that treatment of a particular disease from which the patient is suffering is not available in any Govt. Hospital in the State and it is absolutely essential for the recovery of the patient to have treatment at a Hospital outside the State is concerned obviously it comes into operation in a case where the employee is posted within the State of Rajasthan and he is required to go outside the State of Rajasthan for availing treatment for himself or for any member of his family, in respect of whom he is entitled to reimbursement of medical expenses incurred by him on their treatment. However, if a Govt. servant is posted to a Station or sent on duly or spending leave or otherwise at a station outside Rajasthan in India and falls ill, no Authority outside the State of Rajasthan can certify or can by required to certify whether the treatment for the concerned diseased for which treatment is to be given to him at such place outside the State of Rajasthan while he is outside the State of Rajasthan that such a facility is not available in the State of Rajasthan. Therefore, in our opinion, the plea that because the petitioner-appellant has not obtained a certificate before availing the benefit of treatment in an approved Hospital outside the State of Rajasthan under Rule 7(1) of the Rules, he is not entitled to any reimbursement, cannot be sustained in the very nature of the facts and circumstances of the present case where it was physically impossible for the petitioner-appellant to have obtained a certificate from any authority at Delhi that such facility is not available within the State of Rajasthan.
(17). The contention of the learned counsel for the respondents that such a certificate could have been from any Central or State Govt. Hospital at New-Delhi as required under Rule 7(1) of the Rules also cannot be sustained. Neither All India Institute of Medical Sciences, New Delhi or any other Govt. Hospital at Delhi could verify that treatment for the disease suffered by the patient (petitioner's wife) was not available in the State of Rajasthan because such authorities are not Incharge of medical facilities rendered in the State of Rajasthan. Nor could such hospitals certify that no facility is available in Delhi for the treatment of heart ailment requiring open heart surgery, inasmuch as at least two institutions for such treatment at Delhi were recognised by the State of Rajasthan.
(18). Sub-Rule (2) of Rule 6 of the Rules has no bearing on the controversy before us. It is true that under Rule 3 of the Rules, the expenses incurred by a Govt. servant on account of medical attendance and treatment are to be reimbursed on production of requisite certificate from the Authorised Medical Attendant in the prescribed form. Obviously while defining under Sub-Rule (1) of Rule 3 of the Rule, 'the Authorised Medical Attendant'. 'Authorised Medical Attendant' in respect of a Govt. servant or class of Govt. servants at a station or area means, (i) a Medical Officer of the Rajasthan Medical Department on duty in a hospital or dispensary; or (ii) a Medical Officer on duty in a Non- Government Medical Institution recognised as 'Government Medical Hospital' under sub-clause (viii) and nominated by the Director of Medical & Health Services; or (iii) a Government Chikitsak in Ayurved/Unani and Homeopathy nominated by the Director of Ayurvedic Department. It does not refer to a Medical Attendant of a Hospital or Dispensary of the Central Govt. or of any other State Govt. Therefore, in order to provide facility of reimbursement of medical expenses incurred by a Govt. servant outside the State of Rajasthan, it has to be specifically provided in Sub- Rule (2) of Rule 6 of the Rules that for the purpose of this rule, 'Authorised Medical Attendant' in respect of a Government servant or class of Govt. Servants at a station outside Rajasthan shall mean an Officer of Medical Department of Central or other State Government as the case may be on duly in a Govt. Hospital or Dispensary at that station. This provision cannot be read into Rule 7 of the Rules for the purpose of accepting such Authorised Medical Attendant of a Hospital of the Central or the any other State Govt. as competent to issue requisite certificate under Rule 7(1) of the Rules. As stated above, Rule 6 does not deal with availing of treatment outside the State of Rajasthan in respect of a disease for which treatment is not available within the State of Rajasthan. Sub-Rule (3) of Rule 7 of the Rules further envisages that the facility of medical attendance and treatment in the type of cases mentioned in Sub-Rule (1) can be had at any of Hospital/Institutions. All Hospitals/Institutions which are recognised and approved for availing medical attendance and treatment for specific diseases outside State are recognised for the purpose of Rule 7(1) of the Rules. The very purpose of recognising such Institutions is to acknowledge the fact that they are rendering services in the area of treatment in which no treatment is available in the State of Rajasthan. It is not required to obtain a certificate that facility of such treatment regarding ailment of petitioner's wife was not available in Delhi because, the petitioner's wife was availing medical attendance and treatment of her ailment at Delhi itself, when she fell ill at Delhi only during the time she was with her husband, the petitioner who was then spending time at Delhi on leave.
(19). The Escorts Heart Institute and Research Centre, New-Delhi has been recognised as a referal Hospital for treatment of Heart ailment of Govt. Servants including members of their families outside the State of Rajasthan and name of this Institution was inserted vide FD Office Memorandum No.F.12(12)FD(Gr.2)/82 dated 25.8.89 by inserting entry No. (viii) under heading (d) 'complicated heart surgery cases' as the last para of Finance Department Memorandum No.F.12(1)FD(Gr.2)/89 dated 21.2.1989.
(20). The contention that for availing treatment at Escorts Institute and Research Centre, New Delhi or any other Institution which is recognised by the State Govt. for heart ailment of his wife, the petitioner in the facts of the present case ought of have obtained a certificate from All India Institute of Medical Science, New Delhi for specialised is not acceptable. If two Institutions/Hospitals at one station have been identified as having facility of specialised treatment, to which reference can be made for medical attendance and treatment of a Government servant posted within the State of Rajasthan or to any member of his family for treatment of such disease and the Government servant or any member of his family while spending time outside State at such place in the contingency mentioned under Rule 6, suffers from such disease, he is entitled to avail treatment at either of the two Institutions which are recognised for such specialised treatment. In such circumstances, it is not required that he should secure a certificate of non-availability of such treatments at any Govt. Hospital in Rajasthan, nor such a plea can be entertained that for availing treatment at any one of such institution at the same station, he has to avail a certificate of non-availability of treatment of any Govt. hospital of that place. No such certificate for availing treatment at approved institution situated at same station, where the patient is entitled to avail treatment whether in the parent State of employment or under Rule 6(1) is envisaged. It would he a strange proposition to accept that the petitioner ought to have obtained a certificate from All India Institute of Medical Sciences, New- Delhi which itself is a recognised Institution outside State for being referred to another approved institution viz., Escorts Heart and Research Institute, New Delhi for specialised treatment in Heart surgery case that such facility is not available at All India Institute of Medical Sciences, New Delhi and he should avail such a facility of treatment at Escorts Heart and Research Institute, New-Delhi. A Government servant either posted at Delhi or sent on duty to Delhi or spending his leave at Delhi in the circumstances where he or his family members suffers from such an ailments, he is entitled to go to any of such Institutions which are recognised for special treatment including any General Hospital in Delhi. In these circumstances, there is no room to accept such a contention raised by the respondents.
(21). As a matter of the fact, Rule 6(1) itself postulates that if a Govt. servant who is stationed outside the of State Rajasthan as a result of his posting or on deputation or on leave, he or his dependent is entitled to avail medical treatment at such place at the Government Hospitals and if he or his dependent is suffering from special disease, he may avail the facility of medical treatment at any recognised Institution having facility of such specialised treatment where the patient could have been referred for treatment, had he been in Rajasthan and in those circumstances, in our opinion, on referable order is required under Rule 7(1) or 6(1) of the Rules, as contended by the learned counsel for the respondents.
(22). There is yet another reason for us to conclude that the provision for seeking a certificate under Rule 7(1) is not necessary. We have already noticed that the petitioner's wife fell sick with heart-ailment while the petitioner and his family was at Delhi, during the period the petitioner was in Delhi on leave. Thus, Rule for taking treatment outside State of Rajasthan on account of non-availability of treatment in Rajasthan could not obviously be applied. The petitioner could avail the treatment in Delhi without any such certificate. In Delhi, there was available a Govt. hospital as well as an approved private Hospital for receiving treatment of heart ailment with which the petitioner's wife suffered. When at the same station, two recognised Institutions are available for availing treatment for such specified diseases, no rule prohibits exercise of option by the petitioner to avail medical treatment in either of them or which require in such even to seek a certificate of non- availability of treatment in the State of Rajasthan under Rule 7(1). The wife of the petitioner was not at all required to move outside the station at which she was there at the time of falling ill for availing treatment. In such event on receiving medical treatment at any of the recognised Institution available in the town are liable to be reimbursed on certification by such Institute for diagnosis, treatment rendered and expenses incurred as indoor patient thereat.
(23). It is also worth noticing that under Rule 5 any member of the family of Govt. employee is entitled to same benefit of availing medical attendance and treatment which such public servant is entitled. For availing such concession in respect of treatment of member of his family, it is not required that such member should be residing with the Govt. employee or even in Rajasthan. For availing benefit of medical attendance and treatment of a member of his family, who resides elsewhere, by nature of things obtaining treatment in the State in all circumstances is not envisaged. In such event, the Govt. servant becomes entitled to reimbursement of medical expenses incurred for treatment of such member at the place where such member ordinarily resides. If such member resides at a place outside Station, and contacts any such disease which needs specialised treatment at an approved institution situated at such place, no rule has been pointed out which require a certification from any medical Officer of Medical College or Govt. Hospital or Govt. Hospital in Rajasthan, or any Govt. Hospital of the place where he resides. In strict sense, Rule 6 also does not apply because right to medical concession in such event flows from Rules 5. In our opinion, case of a member of the family of concerned family falling under Rule 5 cannot be created differently if it falls under Rule 6 for availing treatment when falling sick while he or she is outside State of Rajasthan in the contingencies mentioned under Rule 6.
(24). It is also now well established that right to preserve health and obtain necessary medical aid in furtherance of self preservation is part of right to life.
(25). In Surjit Singh vs. State of Punjab and Others (supra), appellant Surjit Singh while posted as a Deputy Superintendent of Police, Anand Sahib, District Roper, Punjab developed a heart- condition on 22.12.1987 and that day, he went on a short leave extending it up till 10.1.1988, on medical grounds. Six months thereafter, he obtained leave from his superiors from 15.6.1988 to 9.8.1988 and went to England to visit his son. While he was in England, he fell ill due to his heart problem and as an emergency case, was admitted in Dudley Road Hospital Brimingham. After diagnosis he was suggested treatment at a named alternate place. Thus, to save himself, the appellant got himself admitted and operated upon in Human Hospital, Wellington, London for a Bye- pass surgery. A sum of Rs. 3 lakhs was claimed to have been spent at the treatment by his son. On his return, he claimed re- imbursement of medical expenses incurred by him while in England. That reimbursement was refused on the same grounds as are in the case at hand viz., that no sanction was obtained before availing treatment abroad. The petitioner filed a writ petition before the Punjab & Haryana High Court at Chandigarh. Before the High Court, the State Govt. offered to reimburse payment on the rates prevalent in the All India Institute of Medical Sciences, New Delhi. Accepting this offer, the High Court directed the State Govt. to make payment of a sum of Rs. 40, 000/- to the petitioner and disposed of the writ petition.
(26). Aggrieved with the said rejection of full claim, an appeal was taken to the Supreme Court. Relevant circulars in this regard requiring sanction of the competent authority for securing treatment outside India as well as outside State of Punjab read as under:
"Subject; Re-imbursement of medical expenses: Policy regarding Sir/Madam, In supersession of Punjab Government letter No. 7/7/85- 3HB/13855 dated 27.5.1987 the President of India is pleased to lay down the following policy for reimbursement of medical expenses incurred on medical treatment taken abroad and in hospitals other than the hospitals of the Govt. of Punjab (Both outside and in the State of Punjab):
i)........................
ii) The person who is in need of medical treatment outside India or in any hospital other than the Govt. of Punjab (both outside an in the State of Punjab) as the case may be may make an application for getting treatment in these hospitals directly to the Director Health and Family Welfare 2 months advance, duly recommended by the C.M.O./Medical Supdt. indicating that the treatment for the disease mentioned is not available in the Hospital of the Govt. of Punjab. In case of emergency duly authenticated by C.M.O./Medical Supdt, the application can be made 15 days in advance.
iii) Director, Health and Family Welfare, Punjab will place the application of the concerned employee before the Medical Board within 15 days on the receipt of application. In case of emergency, if immediate meeting of Medical Board, cannot be convened, such application may be circulated to all the members of the Medical Board and decision taken thereof.
iv) The Medical Board shall consist of the following Officers:
i) Director, Health and Family Welfare, Punjab-Chairman
ii) Director, Research and Medical Education, Punjab-Member
iii) Specialist of the desired line of treatment from PGI Chandigarh of AIIMS, New Delhi-Member
iv) Senior Most Specialist from Medical Colleges, Patiala, Amritsar and Faridkot-Member
v) Dy. Director/Asstt. Director, I/c of P.M.H. Branches Office of the Director Health and Family Welfare-Member Secy."
vi) xxxxxxxxx
vii) xxxxxxxxx
viii) xxxxxxxxx
ix) xxxxxxxxx
x) xxxxxxxxx
xi) xxxxxxxxx
xii) The Health Department in consultation with Director Research & Medical Education will prepare a list of diseases for which specialised treatment is not available in Punjab Govt. Hospitals and indicate the Institutions/ Hospitals/Clinics of repute where necessary treatment is available. This list wilt, however, be subject to variation in future.
On 8.10.1991, the above policy has further been explained in so far as the choice of the hospitals is concerned. Relevant part of which reads;
Therefore, it has been decided to recognise those hospitals for the treatment of diseases mentioned against them in the enclosed list issued with the concurrence of the Finance Department dated 11.9.1991 which is as under:
Open Heart Surgery; Escorts Heart Institute, New-Delhi; Christian Medical College, Ludhiana, Appollo Hospital, Madras."
(27). The Supreme Court taking note of these circulars held that the purport of the above policy is that the Escorts stands duly recognised by the State for treatment of its employees for open heart surgery, apart from the other two institutions i.e. Christian Medical College. Ludhiana and Appollo Hospital, Madras. The Finance Deptt's concurrence signifies its willingness to entertain reimbursement of bills in variables depending on where treatment is received and directed the State Govt. to reimburse the expenses at the scales admissible for treatment at Escorts. The Court observed in para 10 of the Judgment as under:
"It is otherwise important to bear in mind that self preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self preservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognised it."
(28). The Court also observed in para 11 of the Judgment as under:
"The appellant therefore had the right to take steps in self preservation. He did not have to stand in queue before the Medical Board, the manning and assembling of which, bare-facedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternate hospital as per policy. When the State itself has brought the Escorts on the recognised list, it is futile for it to contend that the appellant could in no event have gone to the Escorts and his claim cannot on that basis be allowed, on suppositions. ..... it is fair and just that the respondents pay to the appellant, the rates admissible as per Escorts.
(29). This view was reiterated by the Court in State of Punjab & Ors. vs. Mohinder Singh Chawla etc. (supra). In C.A. @ SLP (L) No. 12945/96 State of Punjab vs. Warayam Singh, the respondent had heart ailment for which he availed treatment at Escorts Heart Institute and Research Centre and submitted his medical bill for reimbursement but while granting reimbursement for the actual expenses incurred in the sum of Rs. 1,03,267/-. The appellants state authorities rejected the claim of the employee by restricting the payment to him at the rates at which treatment could be availed at AIIMS, New Delhi. The employee filed the petition before the Punjab & Haryana High Court. The Division Bench of the Punjab High Court directed payment of the said amount. Against that judgment, the State Govt. preferred SLP before the Supreme Court. The Court observed:
".....the Govt. has prepared a list of those diseases for which the specialised treatment is not available in Punjab Government Hospitals but it is available in certain identified private hospitals, both within and outside the States. It was, therefore, decided to recognise these hospitals for treatment of the diseases mentioned against their names in the enclosed list for the Punjab Government employees/pensioners and their dependents. The terms and conditions contained in the letter under reference would remain applicable. The Government can, however, revise the list in future. The name of the disease for which the treatment is not available in Punjab Government hospitals is shown as Open Heart Surgery and the name of the private hospital is shown as Escorts Heart Institute, New-Delhi as one of the approved hospital/institution....."
(30). While considering the contention of the respondent State that the petitioner ought to have availed medical treatment at AIIMS at Delhi or obtained certification required under Rule 7(1) from any medical officer from AIIMS by treating him to be authorised medical attendant in terms of Rule 6(2) who could certify necessary vouchers, it is apt to recall following observations of a Division Bench of Punjab & Haryana High Court in C.W.P. No. 13493/92 titled as Sadhu R. Pall vs. State of Punjab (5) quoted with approval by the Supreme Court in Surjit Singh's case (supra):
"The respondents appear to have patently used excuses in refusing full reimbursement, when the factum of treatment and the urgency for the same has been accepted by the respondents by reimbursing the petitioner the expenses incurred by him, which he would have incurred in the AIIMS New Delhi. We cannot loose sight of factual situation in the AIIMS New Delhi i.e. with respect to the number of patients received these for heart problems. In such an urgency one cannot sit at home and think in a cool and calm atmosphere for getting medical treatment at a particular hospital or wait for admission in some Government medical institute. In such a situation, decision has to be taken forthwith by the person or his attendants if precious life has to be saved."
This is a complete answer to above contention.
(31) There are two decisions of the Rajasthan High Court referred by the learned Single Judge in Khuman Singh Mehta vs. State of Rajasthan and Ors. (supra) and Shyam Singh vs. State of Rajasthan and Ors. (supra) wherein this Court issued a direction to reimburse the medical expenses incurred for securing medical attendance for special diseases outside Rajasthan in like circumstances for the reason that there was no facility of treatment of the disease from which the petitioner was suffering in the State of Rajasthan are in consonance with above principles and cannot be distinguished. In fact, present case is in better footing inasmuch as the person needing medical treatment has been taken ill and needed such medical attendance while outside Rajasthan and at a place where specialised treatment for her ailment was available at an approved institution recognised by State of Rajasthan in that behalf.
(32). The ratio of these decisions fully applied to the facts of the present case wherein while the petitioner was in Delhi on leave, his wife suffered heart problem and was immediately taken to Escorts Heart and Research Centre, Delhi, which is recognised Hospital for specialised treatment by the State Govt. where his open heart surgery was made. Thus, it is clear that Escorts Heart and Research Institute is one of the recognised Hospitals for specialised treatment, there is no escape from the conclusion that the State Govt. is liable to reimburse such expenses without insisting for certification from the authorised Medical Attendant or other Competent Officer, when such a facility was not available in the State of Rajasthan. The claim could not be denied on the ground that because the petitioner instead of waiting in queue and spending time in seeking a clarification from a local hospital has decided to act with promptitude in the interest of self preservation by taking his wife immediately to an Institute approved by the State Govt.
(33). Before closing we may notice one ancillary contention raised on behalf of respondent. It was stated that about diagnosis for treatment and certifying expense vouchers, no Doctor of Escorts Health Centre could be considered as Authorised Medical Attendant. The argument appears to be fallacious and founded on ignoring the distinction between function of certifying a patient to be taken to an approved Hospital or Institution outside Station for treatment and certifying the disease for which the patient has actualy treated and medical attendance and treatment actually made available to such patient. So far as the treatment given at any approved institution or for that matter by any medical attendant is concerned, it follows his own diagnosis and prognosis. Actual treatment does not follow on the certificate issued under Rule 7(1). It depends on patient being examined at the Hospital or institution where he is attendant for such treatment. The treatment or medical attendance made available at such Institution follows assessments and diagnosis made at or at the instance of such hospital/institution. It is only on such assessment by the treating agency that treatment follows. Therefore, medical attendance at only such institution can certify about the disease with which the treated patient suffered and treatment rendered at such institute as indoor/outdoor patient. The medical attendant of other institution or Hospital in such circumstance puts his counter signatures only for the purpose of authenticating it in accordance with Rules. However, such counter signing by the authenticated medical attendant cannot be by itself take place of primary proof of diagnosis and treatment rendered by approved hospital or institution at which patient was attended to. Cases are not wanting where notwithstanding certification by the prescribed authority under Rule 7(1) the approved institution has on their own assessment has found otherwise. Therefore, denial of reimbursement of expenses incurred on medical attendance and treatment bonafide and genuinely by the public servant for availing treatment for himself or any member of his family at recognised hospital/institution in the circumstances like the present case on such technical grounds shall be clearly arbitrary, unreasonable and unjust. The required formalities of counter signing the certificate/vouchers issued by such Institutions can always be cured by obtaining appropriate counter signatures from the competent officer under the Rules and in the absence of doubt about genuineness of such certification, such authority will not be justified in refusing to countersign without satisfying his doubt.
(34). As a result, this appeal is allowed and the impugned judgment of the learned single Judge dated 12.4.1999 is set aside. The writ petition filed by the petitioner is also allowed and the respondents are directed to reimburse the expenses incurred by the petitioner for the treatment of his wife at Escorts Heart and Research Institute, New Delhi as certified by the said Hospital.
(35). There will be no order as to costs.