Rajasthan High Court - Jodhpur
Srigopal Guchiya vs State Of Rajasthan on 11 September, 2019
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR
S. B. Civil Writ Petition No. 9975/2018
Srigopal Guchiya S/o Late Shri Dev Kishan Guchiya, Aged About 72
Years, Nathawato-Ka-Chowk, Phalodi, District Jodhpur, Rajasthan.
----Petitioner
Versus
1. State Of Rajasthan, Through Secretary- Finance, Finance
Department, Government Of Rajasthan, Jaipur.
2. The Director, Pension And Pensioners Welfare Department,
Government Of Rajasthan, Jaipur.
3. The Treasurer (Rural), Jodhpur, Rajasthan.
----Respondents
For Petitioner(s) : Mr. Jagdish Vyas.
For Respondent(s) : Ms. Akshiti Singhvi on behalf of Mr.
Sandeep Shah, AAG.
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
Judgment
11/09/2019
This writ petition has been filed by the petitioner Srigopal
Guchiya assailing orders dated 21.08.2017 and 17.07.017 passed by
Respondent No. 2 and 3 respectively whereby claim of the petitioner
for reimbursement of medical expenses has been declined.
Mr. Jagdish Vyas, learned counsel for the petitioner
submitted that the petitioner was working as Senior Clerk at
Panchayat Samiti Phalodi and retired from services on 30.08.2000.
He was issued PPO No. 49142 (R) and medical diary. The petitioner,
who was staying at Phalodi, on 23.12.2016 suddenly felt severe pain
in his chest and was immediately rushed to Jodhpur and admitted in
Mathuradas Mathur Hospital, Jodhpur in Department of Cardioogy in
the unit of Dr. Sanjeev Sanghvi. He remained under treatment there
from 23.12.2016 to 27.12.2016 as indoor patient. During that
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period, he was subjected to angiography, which revealed that his
heart was functional only to the extent of 20%. He was suffering
from 'Coronary Artery Disease-Triple Vessel Disease' and required
immediate Coronary Artery Bypass Grafting Surgery (CABG). Since
the facility of this treatment was not available in Mathuradas Mathur
Hospital, the petitioner was discharged on 27.12.2016 with the
advise, "Adv. CABG Referred to higher centre for needful."
Learned counsel for the petitioner submitted that the
petitioner, who was 70 years of age, immediately taken to
Ahmedabad on the same day and was admitted in SAL Hospital on
28.12.2016 by his family members where CABG was done on
03.01.2017 on "on pump". Cardiothoracic Surgeon of the said
hospital has issued a certificate to the petitioner on 17.02.2017,
certifying, "70 yaers-old-male patient, Mr. Shre Gopal Guchiya, was
suffering from Coronary Artery Disease-Tripple Vessel disease.
Patient was admitted to SAL Hospital on 28/12/2016. Patient's
position was critical. He was in need of life saving measures
urgently. In Emergency Coronary Artery Bypass Grafting Surgery
was done on 03.01.2017 on "On Pump". Patient was discharged on
11/01/17." Learned counsel submitted that the petitioner was
discharged from that hospital on 11.01.2017. A total sum of Rs.
2,66,326/- was paid to the hospital towards operation and surgery
charges, which is evident from Annexure-2. Thereafter, the
petitioner approached the Treasury (Rural), Jodhpur and claimed
reimbursement of medical expenses of Rs. 2,78,465/- towards the
surgery and the medicines. The petitioner also submitted an affidavit
along with his claim disclosing the circumstances under which he
was taken to SAL Hospital, Ahmedabad as also the aforementioned
certificate issued by the hospital. However, the respondents,
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mechanically rejected the claim of the petitioner by stating that the
same is not in consonance with the Rule 10(1) of the Rajasthan Civil
Services (Medical Attendance) Rules, 2013 (for short 'the Rules of
2013') and that the petitioner had taken the treatment outside the
State without proper reference and the treatment appears to have
been taken in a planned manner.
Learned counsel for the petitioner submitted that after
rejection of the claim of the petitioner, the petitioner again
submitted a representation to the respondents but they again
rejected the same vide communication dated 17.07.2017. The
petitioner then submitted a detailed representation to the State
Government on 21.08.2017 but of no avail. Therefore, the
petitioner has approached this Court by way of filing present writ
petition. Learned counsel for the petitioner, in support of his
arguments, has relied upon the judgment of the Supreme Court in
Shiva Kant Jha Vs. Union of India, AIR 2018 SC 1975 and
judgments rendered by the Division Bench of this Court in The
State of Rajasthan & Others Vs. Tikam Chand Maloo (D.B.
Civil Special Appeal (Writ) No. 1124/2015 decided on
15.05.2018) and State of Rajasthan Vs. Mangal Singh
Rajpurohit (D.B. Civil Special Appeal (Writ) No. 1549/2014
decided on 15.12.2018) wherein in similar circumstances, claim of
reimbursement was allowed and the respondents therein were
directed to pay the entire medical expenses incurred by the
claimants therein.
Ms. Akshiti Singhvi, learned counsel appearing on behalf
of the respondents opposed the writ petition and submitted that the
petitioner has taken treatment from SAL Hospital, Ahmedabad
without proper reference. She argued that in view of the mandate
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of Rule 10(1) of the Rules of 2013, reference ought to have been
made by the Medical Board headed by the Principal of the Medical
College concerned for treatment of the petitioner outside the State.
Therefore, he is not entitled for any reimbursement. In the present
case, emergent situation for getting treatment from private hospital
outside the State has not emerged as per Rule 11 of the Rules of
2013. Therefore, the respondents were perfectly justified in
rejecting the claim of the petitioner. Case of the petitioner is not
covered by Rajasthan State Pensioners Medical Concession Scheme,
2014, according to para 4 of which, the medical reimbursement can
be made only when treatment was undergone out of State when
such treatment was not available in the any of the Government
Hospitals of State of Rajasthan or in emergent situation were such
condition is proved by the certification of Principal of Medical College
on approval of Medical Board, which was not obtained by the
petitioner. Learned counsel in support of her arguments relied upon
the judgment of the Supreme Court in State of Rajasthan Vs.
Mahesh Kumar Sharma, (2011) 4 SCC 257.
I have given my anxious consideration to rival
submissions and carefully perused the material on record.
Cited judgment of the Supreme Court in State of
Rajasthan Vs. Mahesh Kumar Sharma (supra) arose out of the
Rajasthan Civil Services (Medical Attendance) Rules, 1970. Relevant
Rule therein was Rule 6, pertaining to medical attendance and
treatment outside Rajasthan and Rule 7, which pertained to
treatment of a disease for which treatment is not available in the
State. The Supreme Court in that case referred to its earlier
judgment in State of Punjab Vs. Ram Lubhaya Bagga, (1998) 4
SCC 117. However, the present case arises out of the Rules of 2013.
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In Shiva Kant Jha (supra), the petitioner was CGHS beneficiary
having a CGHS Card valid for whole life for medical treatment in
Private Ward. The petitioner therein submitted two sets of his
medical bills under the CGHS for reimbursement on account of his
treatment done in November, 2013 in the Fortis Escorts Hospital,
New Delhi for Rs. 9,86,343/- for his cardiac ailments involving the
implant of CRT-D device and two sets of bill amounting to Rs.
3,98,097/- for his treatment at Jaslok Hospital, Mumbai for cerebral
stroke and paralytic attack. The claim of the petitioner was rejected
without informing him of the reasons of rejections. The petitioner
directly approached the Supreme Court by filing writ petition under
Article 32 of the Constitution of India contending that he being in
late 70s of his age, needs money to meet the needs for his survival.
The Supreme Court in para 9 of the Report took note of the fact that
the petitioner was admitted in emergency condition with complaint
of breathlessness on 11.11.2013 in Fortis Escorts Health Institute
which was a non-empanelled hospital. He underwent angiography on
12.11.2013 which revealed diffused disease in left anterior
descending coronary artery 50-60%. He had been implanted the
CRT-D device (Combo) as part of cardiac resynchronization therapy
(CRT) on 12.11.2013. The hospital charged an amount of Rs.
11,56,293/- for the said treatment, out of which, an amount of Rs.
10,70,000/- was for the cost of the unlisted cardiac implant (CRT-D)
and an amount of Rs. 3,19,950/- was paid by the Insurance
Company directly to the hospital. Case of the petitioner therein was
considered by Special Technical Committee in its meeting held on
29.04.2014 but it did not find any justification for implant of CRT-D
device of the petitioner. On request of the petitioner, the matter was
again reconsidered by the Special Technical Committee. Therefore,
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out of the total amount i.e. Rs. 13,84,440/-, an amount of Rs.
4,90,000/- was paid to the petitioner on the direction of the
authority and Rs. 94,885/- for treatment at Jaslok Hospital. In
those facts, the Supreme Court held as under:
"12. With a view to provide the medical facility to the
retired/serving CGHS beneficiaries, the Government
has empanelled a large number of hospitals on CGHS
panel, however, the rates charged for such facility
shall be only at the CGHS rates and, hence, the same
are paid as per the procedure. Though the
respondent-State has pleaded that the CGHS has to
deal with large number of such retired beneficiaries
and if the petitioner is compensated beyond the
policy, it would have large scale ramification as none
would follow the procedure to approach the
empanelled hospitals and would rather choose private
hospital as per their own free will. It cannot be
ignored that such private hospitals raise exorbitant
bills subjecting the patient to various tests,
procedures and treatment which may not be
necessary at all times.
13. It is a settled legal position that the government
employee during his life time or after his retirement
is entitled to get the benefit of the medical facilities
and no fetters can be placed on his rights. It is
acceptable to common sense, that ultimate decision
as to how a patient should be treated vests only with
the Doctor, who is well versed and expert both on
academic qualification and experience gained. Very
little scope is left to the patient or his relative to
decide as to the manner in which the ailment should
be treated. Speciality Hospitals are established for
treatment of specified ailments and services of
Doctors specialized in a discipline are availed by
patients only to ensure proper, required and safe
treatment. Can it be said that taking treatment in
Speciality Hospital by itself would deprive a person to
claim reimbursement solely on the ground that the
said Hospital is not included in the Government
Order. The right to medical claim cannot be denied
merely because the name of the hospital is not
included in the Government Order. The real test must
be the factum of treatment. Before any medical claim
is honoured, the authorities are bound to ensure as
to whether the claimant had actually taken treatment
and the factum of treatment is supported by records
duly certified by Doctors/Hospitals concerned. Once,
it is established, the claim cannot be denied on
technical grounds. Clearly, in the present case, by
taking a very inhuman approach, the officials of the
CGHS have denied the grant of medical
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reimbursement in full to the petitioner forcing him to
approach this Court.
14. This is hardly a satisfactory state of affairs. The
relevant authorities are required to be more
responsive and cannot in a mechanical manner
deprive an employee of his legitimate
reimbursement. The Central Government Health
Scheme (CGHS) was propounded with a purpose of
providing health facility scheme to the Central
Government employees so that they are not left
without medical care after retirement. It was in
furtherance of the object of a welfare State, which
must provide for such medical care that the scheme
was brought in force. In the facts of the present case,
it cannot be denied that the writ petitioner was
admitted in the above said hospitals in emergency
conditions. Moreover, the law does not require that
prior permission has to be taken in such situation
where the survival of the person is the prime
consideration. The doctors did his operation and had
implanted CRT-D device and have done so as one
essential and timely. Though it is the claim of the
respondent-State that the rates were exorbitant
whereas the rates charged for such facility shall be
only at the CGHS rates and that too after following a
proper procedure given in the Circulars issued on
time-to-time by the concerned Ministry, it also cannot
be denied that the petitioner was taken to hospital
under emergency conditions for survival of his life
which requirement was above the sanctions and
treatment in empanelled hospitals.
15. In the present view of the matter, we are of the
considered opinion that the CGHS is responsible for
taking care of healthcare needs and well being of the
central Government employees and pensioners. In
the facts and circumstances of the case, we are of
the opinion that the treatment of the petitioner in
non-empanelled hospital was genuine because there
was no option left with him at the relevant time. We,
therefore, direct the respondent-State to pay the
balance amount of Rs.4,99,555/- to the writ
petitioner. We also make it clear that the said
decision is confined to this case only."
In State of Rajasthan Vs. Mangal Singh Rajpurohit
(supra), respondent was a retired employee of this Court, who
upon diagnosis was declared as patient of dreaded deceased cancer
(RLGVS). As per medical advice, he was treated in Government
Hospital but without any improvement. He took treatment in private
hospital where he incurred expenses of Rs. 1,12,551/-. However,
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only part of the medical expenses amounting to Rs. 22,038/- were
reimbursed. He approached this Court by filing writ petition, which
was allowed. State of Rajasthan filed appeal, which was dismissed
by the Division Bench of this Court with the following direction:
"It is not in dispute that the respondent-pensioner is
entitled to get reimbursement of the claim for
treatment taken in a private hospital in light of the
Circulars issued by the State Government itself as
such the point which remains to be decided in the
present appeal is only to the limited extent of
quantum of reimbursement to be allowed to the writ-
petitioner. In view of relevant Rules and the Circulars
issued from time to time by the State of Rajasthan,
entitlement of the writ-petitioner to get
reimbursement is unquestionable. Moreover, in want
of reasons, much less plausible reasons for slashing
the total amount of medical bills, learned Single
Judge has rightly concluded that impugned action of
the State is not sustainable. Before us also, appellant
State has miserably failed to show any justification
about break-up for arriving at such a meager amount
of entitlement of the respondent. Therefore, in
totality, findings and conclusions of the learned Single
Judge to concur with the afflictions of the writ-
petitioner, is based on sound reasonings warranting
no interference in this intra-court appeal."
In the State of Rajasthan & Others Vs. Tikam Chand
Maloo (supra), when similar writ petition was allowed by the Single
Bench of this Court, State of Rajasthan preferred appeal which was
dismissed by the Division Bench of this court. In that case, Tikam
Chand Maloo, who was employee of Public Health and Engineering
Department and working on the post of Lower Division Clerk, went
with his family at Ahmedabad in June, 2011 after taking two days
lave with permission to leave headquarter on account of summer
vacation to meet his relatives. At Ahmedabad, he felt immense pain
in his lower lip. After being diagnosed he was found to be suffering
from malignancy of the lower lip and was advised by the concerned
specialist to be immediately hospitalised so that operation could be
performed as malignancy was in its initial stage but was likely to
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spread. He was admitted in HCG Medi-Surage Hospital, Ahmedabad
on 27.06.2011 and after requisite tests, operation was performed on
30.06.2011. When he submitted medical bills for reimbursement,
only part of that was accepted. Therefore, he approached this Court
by way of filing writ petition, which was allowed by the learned
Single Judge of this Court. The matter was then taken up before the
Division Bench by the State of Rajasthan by filing appeal. The
Division Bench dismissed the appeal filed by State.
In the case of Surjit Singh Vs. State of Punjab,
(1996) 2 SCC 336, the Supreme Court in identical situation gave
verdict that the petitioner of that case while he was in England took
treatment outside the country in emergent situation, therefore, he
was held entitled for reimbursement of the medical expenses
incurred by him. The Supreme Court held that the appellant of that
case fell ill at in England and being emergency case was admitted to
Dudley Road Hospital, Birmingham. After proper medical diagnosis
he was suggested treatment at a named alternate place. He was
admitted and undergone bypass surgery in Humana Hospital,
Wellington, London. He claimed reimbursement for the amount
spent by him. In the peculiar facts of that case it was held as infra:
"11. 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. Attention can usefully be drawn to verses 17, 18, 20
and 22 in Chapter 16 of the Garuda Purana (A Dialogue
suggested between the Divine and Garuda, the bird) in the
words of the Divine:
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17. Vinaa dehena kasyaapi canpurushaartho na
vidyate Tasmaaddeham dhanam
rakshetpunyakarmaani saadhayet Without the body
how can one obtain the objects of human life?
Therefore protecting the body which is the wealth,
one should perform the deeds of merit.
18. Rakshayetsarvadaatmaanamaatmaa sarvasya
bhaajanam Rakshane yatnamaatishthejje
vanbhaadraani pashyati One should protect his body
which is responsible for every thing. He who protects
himself by all efforts, will see many auspicious
occasions in life.
20. Sharirarakshanopaayaah kriyante sarvadaa
budhaih Necchanti cha punastyaagamapi
kushthaadiroginah The wise always undertake the
protective measures for the body. Even the persons
suffering from leprosy and other diseases do not wish
to get rid of the body.
22. Aatmaiva yadi naatmaanamahitebhyo nivaarayet
Konsyo hitakarastasmaadaatmaanam taarayishyati If
one does not prevent what is unpleasent to himself,
who else will do it? Therefore one should do what is
good to himself."
12. 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.
We think to the contrary. In the facts and circumstances,
had the appellant remained in India, he could have gone to
the Escorts like many others did, to save his life. But
instead he has done that in London incurring considerable
expense. The doctors causing his operation there are
presumed to have done so as one essential and timely. On
that hypothesis, it is fair and just that the respondents pay
to the appellant the rates admissible as per Escorts. The
claim of the appellant having been found valid, the
question posed at the outset 15 answered in the
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affirmative. Of course the sum of Rs.40,000/- already paid
to the appellant would have to be adjusted in computation.
Since the appellant did not have his claim dealt with in the
High Court in the manner it has been projected now in this
Court, we do not grant him any interest for the intervening
period, even though prayed for. Let the difference be paid
to the appellant within two months positively. The appeal is
accordingly allowed. There need be no order as to costs."
In State of Karnataka & Another Vs. R. Vivekanand
Swamy, (2008) 5 SCC 328, the Supreme Court held as infra:
"In a case of this nature, we are of the opinion, that
having laid down the law for the future that claim for
reimbursement must be made only in terms of the Rules
and not dehors the same, and more so, when there is no
power of relaxation, in exercise of our jurisdiction
under Article 142 of the Constitution of India, we direct the
States of Karnataka and Rajasthan to pay the balance
amounts."
Furthermore, Division Bench of this Court in State of
Rajasthan & Ors. Jawahar Lal Bohra, D.B. Special Appeal
(Writ) No.1192/82014- decided on 15.05.2018, held as under:
-
"The aforesaid judgment loudly speaks that in the year 2004, when the writ-petitioner availed treatment at Asian Heart Institute, Mumbai, the judgment passed in the case of Surjit Singh (supra) was very much in existence and on the day on which his claim was rejected, the said judgment was in existence. The learned Single Judge has considered the Rules 6 and 7 of the Rules of 1970 so as to accept the prayer of the respondent/writ-petitioner because Bombay Hospital is included in Appendix II of the Rules of 1970 in which list of fourteen such hospitals are included. It is true that under Rule 6 of the Rules of 1970 only three (D.B. SAW/78/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 01:01:03 PM) (12 of 13) [CW-9975/2018] hospitals are recognized situated at Delhi and 14 hospitals are recognized for the cases falls under Rule 7 but peculiar circumstances of this case and upon the fact that writ- petitioner/respondent was admitted in the hospital near to his residence in emergent situation, it cannot be said that the learned Single Judge has committed any wrong so as to hold the respondent/writ-petitioner (late Sh. Jawahar Lal Bohra) entitled for reimbursement for the cost of his treatment equivalent to Bombay Hospital.
In view of above, we see no reason to interfere in the judgment impugned and consequently the instant appeal is hereby dismissed. The appellant- State is hereby directed to comply with the directions issued by the learned Single Judge within a period of three months and reimburse the amount to the legal heirs of the original petitioner late Sh. Jawahar Lal Bohra."
In the present case, we find that facts which are not disputed are that the petitioner is more than 70 years of age; when he felt severe chest pain, he was rushed to Jodhpur and admitted in Mathuradas Mathur Hospital, Department of Cardiology in the unit of Dr. Sanjeev Sanghvi. He remained under treatment for the period from 23.12.2016 to 27.12.2016. During this period, he was subjected to angiography which revealed that his heart was functional only to the extent of 20%. He was suffering from 'Coronary Artery Disease-Triple Vessel Disease' and was advised Coronary Artery Bypass Grafting Surgery (CABG) immediately. It is common knowledge that in the case of this kind of heart disease, angioplasty is not advised and open heart bypass surgery is suggested as the treatment. It is also a fact that Emergency Coronary Artery Bypass Grafting Surgery of the petitioner was done on 03.01.2017 and that too on "On Pump", which is generally suggested for high risk heart patients. It was indeed a complicated (D.B. SAW/78/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 05/06/2021 at 01:01:03 PM) (13 of 13) [CW-9975/2018] surgery. The fact that the petitioner was discharged from Mathuradas Mathur Hospital, Jodhpur on 27.12.2016 and was immediately moved to Ahmedabad where he was admitted in SAL Hospital on the very next day, i.e. 28.12.2016, proves the bona fides of the petitioner that it was a case of emergency and looking to the age of the petitioner, such kind of complicated surgery was required immediately.
In view of above discussion, writ petition is allowed. The respondents are directed to reimburse the amount as claimed by the petitioner within the period of two months from the date copy of this judgment is produced before them.
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