Rajasthan High Court - Jaipur
Shanker Lal Mathur (Dr.) vs State Of Rajasthan And Anr. on 29 July, 2003
Equivalent citations: RLW2004(3)RAJ1514, 2004(1)WLC290
JUDGMENT Sunil Kumar Garg, J.
1.This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 9.8.2001 against the respondents with the prayer that by an appropriate writ, order or direction, the respondents be directed to reimburse the expenses incurred by the petitioner in his Coronory Artery By Pass Surgery at Escort Heart Institute and Research Centre, New Delhi (for short "Escort Institute") on 30.4.1999.
2. The case of the petitioner as put forward by him in this writ petition is as follows:-
On 26.3.1999, the petitioner suffered with a heart attack while he was holding the post of the Chief Medical and Health Officer, Sikar. The petitioner was immediately admitted as indoor patient at Government Hospital, Sikar where he suffered second heart attack on 1.4.1999 and therefore, he was immediately shifted to Santokh Ba Durlabhji Hospital, Jaipur on 1.4.1999 itself and thereafter, he was shifted to SMS Hospital, Jaipur on 5.4.1999 as indoor patient. On 11.4.1999, chest pain was re- occurred to the petitioner and therefore, on 12.4.1999, his angiography was done at SMS Hospital, Jaipur. Thereafter, the Cardiologist through his letter dated 13.4.1999 (Annex. I) made a request to the Principal and Controller, SMS Medical College and attached Hospital, Jaipur to constitute a Medical Board as the petitioner was to undergo coronary artery by-pass grafting surgery at New Delhi.
Thereafter, the Principal & Controller, SMS Medical College and attached Hospitals, Jaipur through letter Annex.2 dated 15.4.1999 constituted a Medical Board consisting of Dr. R.K. Madhok as its Convenor, Dr. R.K. Saxena and Dr. K.K. Kashuwah as its members.
The further case of the petitioner is that the Medical Board constituted through order Annex.2 dated 15.4.1999 examined the petitioner on 19.4.1999 and recommended for coronary artery by- pass grafting surgery at All India Institute of Medical Sciences, New Delhi (for short "AIIMS") through Annex.3 dated 19.4.1999.
The further case of the petitioner is that he first approached the authorities of AIIMS for surgery, but there was a huge waiting list and the health of the petitioner was not permitting to wait so long and therefore, in above circumstances, since he was facing serious cardiac ailment, therefore, he opted for Escort Institute at New Delhi where he was admitted on 27.4.1999 under the treatment of Dr. Naresh Trihan and the coronary artery by-pass grafting surgery of the petitioner was done on 30.4.1999 at Escort Institute, New Delhi.
The further case of the petitioner is that he paid Rs. 1,68,100/- to the Escort Institute, New Delhi for the above treatment/surgery and the statement of payment made by the petitioner to Escort Institute is marked as Annex.4.
The further case of the petitioner is that after being discharged from the hospital, he moved an application claiming reimbursement of medical expenses incurred by him for coronary artery by-pass grafting surgery at Escort Institute, New Delhi, but surprisingly, the Chief Medical and Health Officer, Sikar through letter dated 6.6.2000 (Annex.5) informed the petitioner that the State Government vide its letter dated 9.5.2000 (Annex.6) denied reimbursement of medical expenses incurred by him on the ground that the case of the petitioner for coronary artery by-pass grafting surgery was recommended and referred to the AIIMS, New Delhi by the Medical Board, but he had undergone coronary artery by-pass grafting surgery at Escort Institute, New Delhi without prior permission of the Government.
The further case of the petitioner is that thereafter, he made several representations to the respondents claiming reimbursement of medical expenses incurred by him in coronary artery by-pass grafting surgery and copy of one of the representations is marked as Annex.7 dated 16.10.2000.
The further case of the petitioner is that thereafter, through letter dated 15.5.2001 (Annex.8), the Addl. Director, Medical and Health Services, Jaipur informed the petitioner finally that he was not entitled to reimbursement of medical expenses as he had undergone bypass surgery at Escort Institute, New Delhi without prior permission of the Government.
In this writ petition, Annex.8 has been challenged by the petitioner on various grounds and the main case of the petitioner is that since he was confined to bed, therefore, it was not possible for him to seek prior permission from the Government and apart from this, first he approached the AIIMS, Hospital, New Delhi for by-pass surgery, but there was huge waiting list and health of the petitioner was not permitting to wait so long and therefore, he had undergone by-pass surgery at Escort Institute, New Delhi, which is also recognized as referral hospital for treatment of heart outside the State of Rajasthan and thus, in these circumstances, denial of reimbursement of medical expenses incurred by the petitioner on his by-pass surgery at Escort Institute, New Delhi on the ground that he did not seek prior permission for by-pass surgery at Escort Institute, New Delhi is wholly arbitrary and unreasonable. Hence, this writ petition with the prayer as stated above.
A reply to the writ petition was filed by the respondents and their case is that the case of the petitioner for by-pass surgery was recommended and referred to the AIIMS, New Delhi by the Medical Board, but he had undergone by-pass surgery at Escort Institute, New Delhi and for that, he did not seek prior permission from the State Government. Thus, since the petitioner had moved to Escort Institute, New Delhi at his own will though he was advised for treatment at AIIMS, New Delhi, therefore, he was not entitled to reimbursement of medical expenses incurred by him for his by-pass surgery at Escort Institute, New Delhi. Hence, the writ petition filed by the petitioner be dismissed.
3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record.
4. There is no dispute on the point that at the relevant time the petitioner was holding the post of Chief Medical and Health Officer, Sikar.
5. There is also no dispute on the point that the petitioner is a heart patient since 26.3.1999 and on that day, he suffered with a heart attack and he was admitted to the Government Hospital, Sikar where he suffered second heart attack on 1.4.1999 and therefore, he was immediately shifted to Santokh Ba Durlabhji Hospital, Jaipur on 1.4.1999 itself and thereafter, he was shifted to SMS Hospital, Jaipur on 5.4.1999 as indoor patient. On 11.4.1999, chest pain was re-occurred to the petitioner and therefore, on 12.4.1999, his angiography was done at SMS Hospital, Jaipur.
6. There is also no dispute on the point that the Cardiologist through his letter dated 13.4.1999 (Annex. 1) made a request to the Principal and Controller, SMS Medical College and attached Hospital, Jaipur to constitute a Medical Board as the petitioner was to undergo coronary artery by-pass grafting surgery at New Delhi.
7. There is also no dispute on the point that through Annex.2 dated 15.4.1999, a Medical Board was constituted and through Annex.3 dated 19.4.1999, the Medical Board recommended and referred the case of the petitioner for by-pass surgery to AIIMS, New Delhi.
8. There is also no dispute on the point that the petitioner instead of going to AIIMS, New Delhi for by-pass surgery, he himself went to Escort Institute, New Delhi for by-pass surgery and his coronary artery by-pass grafting surgery was done at Escort Institute, New Delhi on 30.4.1999 and he was discharged on 5.5.1999, which is evident from the bill of Escort Institute, New Delhi dated 5.5.1999 (Annex.4).
9. There is also no dispute on the point that the petitioner himself went to Escort Institute, New Delhi and for that, he had no permission of the State Government and he was having the permission for AIIMS, New Delhi.
10. The question for consideration is whether in the above facts and circumstances, the expenses incurred by the petitioner for his By Pass Surgery at Escort Institute, New Delhi may be reimbursed to him or not.
11. The Hon'ble Supreme Court in Surjit Singh v. State of Punjab (1), has observed as follows:-
"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 had recognized it. Attention can usefully be drawn to versus 17, 18, 20 in Chapter 16 of the Garuda Purana (A dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine:. ..............."
12. Thus, from the above observations of the Hon'ble Supreme Court, it is clear that right to preserve health and obtain necessary medical aid in furtherance of self preservation in part of right to life.
13. A Division Bench of this Court in Shankerlal v. The State of Rajasthan and Ors. (2), after considering various authorities came to the following conclusions in respect of medical reimbursement:-
(i) That Escort Heart Institute and Research Centre, New Delhi has been recognised as a referral Hospital for treatment of Heart ailment of Govt. servants including members of their families outside the State of Rajasthan and the name of this institution was inserted vide FD Office Memorandum No. F.12(12)FD(Gr.2)/82 dated 24.8.89 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.
(ii) That 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.
(iii) That 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 posed within the State of Rajasthan of 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 Slate 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 and 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.
(iv) That it would be 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 recognized institution outside State for being referred to another approved Institution viz. Escort Heart and Research Institute, New Delhi for specialized treatment in Heart Surgery case that facility is not available at All India Institute of Medical Sciences, New Delhi and he should avail such a facility of treatment at Escort Heart and Research institute, New Delhi.
(v) That we cannot loose sight of factual situation in the AIIMS New Delhi i.e. with respect to the number of patients received there for heart problems. In such an urgency one cannot sit at home and think in a cool and cairn 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.
(vi) That 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.
14. Apart from this, there are three decisions of this Court in Khuman Singh Mehta v. State of Rajasthan and Ors. (3), Shyam Singh v. Stale of Rajasthan and Ors. (4), and Chainsingh Panwar v. State of Rajasthan and Ors. (5), where 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.
15. Thus, in view of the above observations made by the Hon'ble Supreme Court as well as by this Court, the action of the respondents denying medical expenses incurred by the petitioner on his By pass Surgery at Escort Institute, New Delhi is clearly arbitrary, unreasonable and unjust. It appears that the petitioner was confined to bed, therefore, he could not seek prior permission from the Government and apart from this, first he approached the AIIMS, Hospital, New Delhi for by-pass surgery, but there was huge waiting list and health of the petitioner was not permitting to wait so long and therefore, in these circumstances, he had undergone by-pass surgery at Escort Institute, New Delhi and though the case of the petitioner was referred to AIIMS, New Delhi, but it would make no difference.
For the reasons stated above, this writ petition filed by the petitioner is allowed and the respondents are directed to reimburse the expenses incurred by the petitioner for his By pass surgery at Escort Heart Institute and Research Centre, New Delhi within a period of three months from today.
No order as to costs.