Rajasthan High Court - Jaipur
Harbir Kaur (Smt.) vs State Of Raj. And Ors. on 17 September, 2004
Equivalent citations: RLW2005(2)RAJ836, 2004(4)WLC685
JUDGMENT Shiv Kumar Sharma, J.
1. Is the claim of the petitioner for medical reimbursement valid and justified in the facts and circumstances of this case, is the core question which emerges for consideration in the instant writ petition.
2. The petitioner's husband late Shri Jagpal Singh, was the member of the Rajasthan Higher Judicial Service (in short Higher Judicial Service). When he was holding the post of President District Consumer Redressal Forum, Dausa in the year 2000 he suspected to be a severe heart patient. He was examined by the Expert Cardiology of SMS Hospital, who advised him to undergo heart surgery. His case was referred to a Medical Board for examining the feasibility and place of heart surgery, which submitted its report on May 26, 2000. It was inter alia stated in the report that Jagpal Singh is suffering from Coronary Artery Bypass Grafting (for short CABG) and his three vessels require grafting, therefore he needed CABG operation. It was further recommended that although this facility was available in the State of Rajasthan, yet he was referred to All India Institute of Medical Science, New Delhi or Escorts Hospital, New Delhi as he wanted to be operated in New Delhi. The approximate cost of operation in the SMS Hospital was shown to be Rs. 50,000/- and expenses of an attendant as per rule. A communication dated May 26, 2000 was received by Jagpal Singh from Principal, SMS Medical College and Controller of the Attached Hospitals, Jaipur wherein it was stated that he could go to Escorts Heart Institute New Delhi (for short Escorts). Jagpal Singh thereafter was admitted in the Escorts for Coronary Angiography on May 20, 2000 and was discharged on May 21, 2000. Since immediate surgery was necessary required Jagpal Singh was again admitted On May 29, 2000 to the Escorts where CABG operation was performed. Jagpal Singh was discharged on June 12, 2000. In the Escorts following amount was paid by Jagpal Singh towards surgery:
Rs. 14,000/- vide Receipt No. 2538 dated 20.5.2000 Rs. 1,90,000 vide Receipt No. 2955 dated 29.5.2000 Rs. 7200 vide Receipt No. 3626 dated 12.6.2000.
Shri Jagpal Singh during his life time made several representations to the respondents seeking medical reimbursement but no heed was paid. After the demise of Shri Jagpal Singh, the petitioner has filed the instant writ petition with the following prayer:
(i) for medical reimbursement of Rs. 2,11,200/- and
(ii) to declare Rule 7 of the Rajasthan Civil Services Medical Attendant Rules 1970 (for short 1970 Rules) as unconstitutional.
3. The respondents submitted reply to the writ petition with the averments that the Medical Board after examining Jagpal Singh observed in its report that the treatment required by him was available in the State of Rajasthan but since the patient wanted to be operated in New Delhi, he could be referred to New Delhi AIIMS/ESCORTS. On May 30, 2000 Jagpal Singh wrote to the Principal SMS Medical College Jaipur that since Doctors at Escorts advised for immediate surgery his case could be referred to the Escorts. Therefore Jagpal Singh was entitled to only such amount of expenses which would have been spent had he been treated in SMS Medical College, Jaipur. As per rule 7 of the 1970 Rules reimbursement of expenses as incurred on treatment in Medical Hospitals/Institutions outside the State as was permissible only in respect of Hospitals enumerated in Appendix 11. Since Escorts was not included in Appendix 11, the relief sought in the writ petition could not be granted.
4. We have pondered over the rival submissions and scanned the material on record. Before proceeding further it will be appropriate to scan the scheme of 1970 Rules framed under the proviso to Article 309 of the Constitution and came into force with effect from March 1, 1970. Rule 7 of 1970 Rules reads as under :
"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 attendance 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 reimbursable:-
(a) Cost (including Sales Tax) of Allopathic Drugs, Medicines, Vaccines, Sera or other therapeutic substances reimbursable 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 duty 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 11. (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.
APPENDIX 11 The following Hospital/Institutions outside the Slate are recognised for the purpose of Rule 7(3) of these rules:-
(1) All India Institute of Medical Science, New Delhi.
(2) Tata Memorial Hospital, Bombay.
(3) Christian Medical College Hospital, Vallore.
(4) Cancer Institute, Madras.
(5) Irwin Hospital, New Delhi.
(6) Lady Hardinges Medical College Hospital, New Delhi (for women and children).
(7) J.J. Hospital, Bombay.
(8) Jas Lok Hospital, Bombay.
(9) Gujrat State Cancer & Research Institute (M.P. Shah Cancer Hospital), Ahmedabad.
(10) Post Graduate Institute & Medical Education Research Centre, Chandigarh.
(11) Bombay Hospital, Bombay."
5. A look at Rule 7 goes to show that 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 of Rajasthan shall be entitled to medical attendance and treatment outside the State of Rajasthan in the Hospital/Institute recognised by the State Government, if this rule is religiously followed than no Government Servant and the members of his family shall be entitled to medical attendance and treatment outside the State of Rajasthan. Would any Hospital admit that particular disease could not be treated in Rajasthan? The answer shall always be in negative. The word 'treatment' used in Rule 7, in our opinion implies 'treatment by specialised Hospital'.
6. Coming to the facts of the instant case we find that Jagpal Singh was advised to undergo immediate surgery. Since treatment by specialised Hospital was required, Jagpal Singh in order to advert threat to life asked the Medical Board to recommend his case for surgery in Escorts. The operation was delayed only for some time because Jagpal Singh was diabitique and it was necessary to control diabetes.
7. It is well settled that right to health is an integral to right to life. Their Lordships of the Supreme Court in Surjeet Singh v. State of Punjab and Ors., JT 1996 (2) SC 28, indicated as under:-(Para 10) "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 versus 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:
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 saravasya bhaajanam Rak-shane yatnamaatishthejje vanbhaadraani pashyati One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life.
20. Shariraraksanopaayaah 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 hitakarastasmaadaam\tmaanam taarayishyati If one does not prevent what is unplesent to himself, who else will do it? Therefore one should do what is good to himself."
8. Not only in 'Garuda Purana" right to life was also recognised in 'YAJUR VEDA'. First 'Mantra' of YAJUR VEDA reads as under:
"Ishe tvoarjey twaa vaayavastha devo vahstena praarpayatu shreshthatamaaya karmana aapyaadwarmaghnyaa indraaya bhaagam prajaapatiranameevaa ayakshmaa maa vahslena eeshata maaghashanso dhruvaa asmin gopathau syaata bahveeryajamaanasya pashoon paahi."
The mantra tells at the outset, about the various types of actions that man must undertake to bring happiness to the world. It says that the vital airs, the winds, the etherial elements (vaayavah) may be harnessed for food (ishe), the food which may give energy and vitality (oorjey). May the God Savitaa, the producer of precious gifts and the great inspirer of men and other beings, help the people to engage themselves in the best deeds (shreshthatamaaya karmana). The sense organs, and also all living beings (Aghnyaah) are fit to be protected and properly maintained, for, our own happiness depends upon them. We must keep ourselves free from the wasting disease (anameevah), we must save ourselves from the thieves (stenah) i.e., robbers and cheats, we must also keep ourselves away from the (aghashansah) people who directly or indirectly, actively or passively support the sinners and their sinful activities. The children, the servants as well as other dependents of a house-holder, also have to be protected against all sorts of dangers (Yajamaanasya pashoon paahi).
This gives us a general idea about the contents of the Yajur Veda. The first and the foremost concern of the living beings is food. Animals eat food for their own survival. They are not concerned about the survival of others. But human beings cannot afford to neglect the survival of others. They must be always conscious about their environment. They must also take care of the ecological balance. These are necessary for their own survival and happiness. Men must also be able to produce food by harnessing the natural resources. They must take special care of their own health. Their happiness depends upon it. Men must also protect themselves from wasting disease. Or else their life may become miserable."
9. In State of Punjab v. Mohinder Singh Chawla, JT 1997 (1) SC 416, Hon'ble Supreme Court held that Government has constitutional obligation to provide the health facilities. If the Government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference whereat the Government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the Government Servant.
10. Division Bench of this Court in Shanker Lal v. State of Rajasthan, (2000) 3 WLC (Raj.) 585 = RLW 2001(1) Raj. 1, observed thus:- (Para 25) "It is clear that Escorts Heart and Research Institute is one of the recognised Hospital for specialised treatment, there is no escape from the conclusion that the State Government 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."
11. Mr. M. Rafiq, learned Additional Advocate General vehemently contended that the State Government enacted Rule 7 in 1970 Rules looking to the financial constraints. The right of State to change its policy from time to time under the changing circumstances cannot be challenged. Reliance is placed on State of Punjab and Ors. v. Ramlubhaya Bagga and Ors., (1998) 4 SCC 117. State of Punjab and Ors. v. Mohan Lal Jindal, (2001) 9 SCC 217, and Punjab State Electricity Board and Ors. v. Jasbir Singh, AIR 1999 SC 979.
12. In State of Punjab v. Ramlubhaya (supra), their Lordships of Supreme Court indicated thus:-(Para 25) "It is not normally within the domain of any court to weigh the pros and cons of the policy or to scrutinise it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy, it is based on a number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would the dangerous if court is asked to test the utility, beneficial effect of the or its appraisal based on facts set out on affidavits. The court would dissuade itself from entering into this realm which belong to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints."
13. In State of Punjab and Ors. v. Mohan Lal Jindal (supra), the Hon'ble Supreme Court while observing that Mohan Lal Jindal's entitlement to medical reimbursement only at AIIMS rate directed to consider his representation on compassionate grounds in respect of reimbursement of additional amount. Mohan Lal Jindal suffered a heart attack and underwent bypass surgery. As there was a long que of patients at AIIMS hospital and his case was of emergency he had to go to other hospital. Since medical reimbursement was available to him at the AIIMS rate the additional amount claimed by him was granted by the High Court on the ground that the new policy introduced by the State of Punjab was not sufficiently published. The Hon'ble Supreme Court did not approve the view taken by the High Court and observed that Mohan Lal Jindal will be entitled to medical reimbursement in the light of the new policy i.e. at AIIMS rate. It was further observed that the representation of Mohan Lal Jindal regarding additional claim shall be sympathetically considered on merits, in respect of reimbursement of additional amount.
14. In Punjab State Electricity Board and Anr. v. Jasbir Singh (supra), it was indicated that reimbursement was permissible only with regard to life saving drugs. Since Norditropin injection which was prescribed for treatment was not a life saving drug, expenses incurred on purchase of said imported drug was not reimbursable.
15. We are unable to agree with the stand taken by the State Government. The State of Rajasthan vide office memorandum No. F.12(1)FD/(Gr-2)/89 dated February 21, 1989 identified and recognised following hospitals as referal hospitals outside the State having facilities for specialised treatment:-
(a) Bypass Coronary Surgery:
(i) Christian Medical College & Hospital Vallore;
(ii) K.E.M. Hospital, Bombay;
(iii) Jaslok Hospital, Bombay;
(iv) Bombay Hospital, Bombay;
(v) Apolo Hospital, Madras.
(b) Kidney Transplant:
(i) Christian Medical College & Hospital, Vallore;
(ii) All India Institute of Medical Sciences, New Delhi;
(iii) Post Graduate Institute, Chandigarh;
(iv) Jaslok Hospital, Bombay.
(c) Blood Cancer:
(i) Tata Memorial Hospital, Bombay;
(ii) Cancer Institute Adayar, Madras.
(d) Complicated heart surgery Cases:
(i) Christian Medical College & Hospital Vallore;
(ii) K.E.M. Hospital, Bombay;
(iii) All India Institute of Medical Sciences, New Delhi;
(iv) Bombay Hospital, Bombay;
(v) G.B. Pant Hospital, Delhi;
(vi) Post Graduate Institute, Chandigarh;
(vii) N.M. Wadia Institute of Cardiology, Pune;
(viii) Apolo Hospital, Madras.
(ix) Escorts Heart Institute, New Delhi.
Since Escorts is a referal hospital, recognised by the State of Rajasthan for treatment of heart ailment of the Government servants, there is no reason for declining reimbursement of the amount for CABG operation of Jagpal Singh. In State of Punjab v. Ramlubhaya Bagga (supra), Hon'ble Supreme Court held that permitting reimbursement at the Escorts will depend on the facts and circumstances of each case. The Court would not interfere with any opinion formed by the Government if it is based on expert advice or relevant facts and circumstances.
16. In the case on hand no material has been placed by the State Government to show the financial strain. On the contrary the petitioner has established that Mr. M.L. Mehta, IAS and Mr. Lalit Kothari, IAS were paid full reimbursement by the Slate of Rajasthan for their Angioplasty performed at Escorts. The State of Rajasthan thus acted arbitrarily by applying different yard sticks to similarly situated persons.
17. Looking to the fact that Jagpal Singh was a patient of diabetes, we, during the course of arguments directed respondent state to furnish information as to whether Department of Endocrinology existed in SMS Hospital Jaipur or not? Pursuant to the directions, Mr. Ram Lubhaya, IAS appeared in person on August 27, 2004 and filed affidavit. Para 4 of the affidavit reads as under:-
"That Diabetic Clinic is being run in SMS Hospital for last almost four decades and is one of the oldest in the country. A large number of diabetic patients are being treated in the Department of Medicine. Presently, Dr. Sandeep Mathur is the only duly selected Associate Professor available in SMS Hospital in the subject of Endocrinology, whereas Dr. Prakash Keshwani who is also D.M. in Endocrinology but is appointed as Assistant Professor in Medicine. Dr. S.K. Sharma third doctor available earlier was also D.M. in Endocrinology working as Assistant Professor in Medicine has taken voluntary retirement. It is submitted that there being only one duly selected Associate Professor in the proper subject of Endocrinology being available, it may not be possible to start a full fledged Department of Endocrinology presently."
18. In the opinion of Medical Experts diabetes is one of the causes of heart ailment. Unless diabetes is controlled no surgery can be performed. It is unfortunate that there is no full fledged department of Endocrinology in SMS Hospital Jaipur. Article 21 of the Constitution casts obligation on the state to provide right to life to its citizen. It is the primary duty of the State to secure health to its citizens. In order to make the right to life meaningful the stale has to employ best talents and tone up its administration to give effective contribution. Since right to life is one of most sacrosanct and valuable rights of a citizen and equally sacrosanct sacred obligation of the State every citizen looks towards the state for it to perform this obligation with top priority including by way of allocation of sufficient funds. One can only express pity to learn that there is no need of full fledged department of Endocrinology in SMS Hospital Jaipur since Diabetic clinic is being run for the last four decades. We do not want to say more in this regard. It is for the State of Rajasthan to decide whether it wants to go with oldest diabetic clinic or intends to open full fledged department of Endocrinology in SMS Hospital Jaipur. Looking to the situation prevailed in the SMS Hospital Jaipur if Jagpal Singh, a severe diabetic patient, got himself operated at Escorts, his decision was perfectly justified.
19. For these reasons, we decide the writ petition in the following terms:-
(i) We hold that claim of the petitioner for medical reimbursement is valid and justified and direct the respondent State to make payment of a sum of Rs. 2,11,200/- to the petitioner within one month from the date of receipt of the copy of this order;
(ii) We direct that the word 'treatment' incorporated in Rule 7(1) of 1970 Rules shall imply the words "specialised treatment".
(iii) There shall be no order as to costs.
Let copy of this order be transmitted to the Chief Secretary of the State for necessary action.