- 1 - S.B.CIVIL WRIT PETITION NO.2562/2005 (Dr.M.K.Harsh vs. State of Rajasthan & Ors.) DATE OF ORDER : 28/5/2008 HON'BLE JUSTICE GOPAL KRISHAN VYAS Dr.G.R.Kalla, for the petitioner. Ms.R.R.Kanwar, Dy. Government Counsel. Reportable In this writ petition, petitioner has prayed for direction to the respondents to make payment of expenses incurred by petitioner for his heart disease and to quash Annex.14 dated 11/3/2005. The facts of the case are that the petitioner is junior specialist in Medical & Health, Department and presently posted at Mobile Surgical Unit, Jodhpur. As per petitioner, he developed a heart problem and got himself examined from expert available at Jodhpur. The petitioner was examined and admitted at Mahatma Gandhi Hospital, Jodhpur in Medical Unit and remained as indoor patient from 9/9/2004 to 13/9/2004 in C.C.U./6/B. Earlier the petitioner was examined by experts at Goyal Heart Center, Jodhpur on 4/9/2004 and he has placed on record his Coronary Angiogram report as Annex.2. The petitioner underwent angiography and paid Rs.10,000/- for the same. He has placed on record the receipt dated 18/9/2004 as Annex.3. It is also submitted that due to critical condition of petitioner and - 2 - looking to the urgency, petitioner needed Coronary Artery Bypass Grafting, therefore, immediately operated by the specialist at Goyal Hospital and Research Centre, Jodhpur because various experts from renowned and recognized Escort Hospital, Delhi visit Goyal Hospital, Jodhpur from time to time and Goyal Hospital is well equipped, therefore, in emergent situation when petitioner's health condition became serious then without waiting to approach to the authorities for approval, petitioner's angiography was done in Goyal Hospital and Research Center, Jodhpur. The contention of petitioner is that to save his life it was felt necessary to get immediate treatment and as per verdict of Hon'ble Apex Court in case of Surjit Singh vs. State of Punjab & Ors. Reported in AIR 1996 SC 1388, it has been held that to save the life of patient, if any treatment is taken in emergent situation then the technical objection with regard to formalities or rule to get treated and operated only from approved hospital cannot become hurdle in way for reimbursement of medical bills of expenses incurred by the Government employee. As per petitioner, he had paid Rs.1,35,000/- for his treatment/operation and he has submitted the said bills for reimbursement along with discharge summary and those bills and certificates were sent through proper channel in prescribed - 3 - proforma and incharge Mobile Surgical Unit forwarded the same and made a request to convey financial sanction but unfortunately the Government has refused to pay the amount claimed by the petitioner on the ground that charges incurred during his treatment in a private hospital cannot be reimbursed under Rajasthan Civil Service (Medical) Rules, 1970 and has ignored the basic consideration of human life, therefore, as per petitioner action of respondents is contrary to Article 21 of the Constitution of India. Further it is submitted that attitude adopted by the respondents is against the equity and good conscience, therefore, as per verdict of Hon'ble Supreme Court expenses incurred by petitioner for his medical treatment are required to be reimbursed by the respondents but only on technical ground the legitimate claim of petitioner for reimbursement has been denied. In reply to writ petition, it is submitted by the respondents that petitioner was referred to SMS, hospital, Jaipur but he got himself treated at Goyal Hospital and Research Centre, Jodhpur, therefore, he has committed illegality and did not approach the SMS, Hospital, Jaipur where he was referred to MGH, Jodhpur, therefore, as per Rules of 1970 he is not entitled to get any reimbursement of medical expenses because Goyal Hospital and Research Center is a private hospital and not recognized under - 4 - the Rules of 1970, therefore, claim of petitioner has rightly been rejected by the respondents in which no interference is required. I have heard learned counsel for the parties. In this case, admittedly, there is no dispute with regard to treatment taken by petitioner in Goyal Hospital and Research Centre, Jodhpur where experts from renowned and recognized Escort Hospital, Delhi are visiting and conducting operations. The petitioner was operated at Goyal Hospital, Jodhpur because there was immediate need of Coronary Artery Bypass Grafting and for which petitioner has admittedly paid Rs.1,35,000/-. It is also obvious from the discharge certificate of Mahatma Gandhi Hospital, Jodhpur that petitioner was admitted to MGH, Jodhpur which is a Government Hospital and no facility of heart surgery is available there. Petitioner was advised or referred to SMS Hospital, Jaipur for needful by the Assistant Lecturer, Dr.S.N.Medical College/Mahatma Gandhi Hospital, Jodhpur but looking to the emergency and availability of experts from Escort Hospital, Delhi at Goyal Hospital and Research Center, Jodhpur petitioner has approached the said Hospital for his treatment and as per medical advice the operation was necessary without further delay to save his life, therefore, in my opinion, although petitioner got treatment from private hospital at Jodhpur but as per decision of this Court in case of Anil Kumar Surolia vs. State - 5 - of Raj. & Ors reported in 2005 (6) RDD page 2029 and judgment delivered by Division Bench of this Court in D.B.Civil Special Appeal (W) No.874/2006 (State of Rajasthan & Ors. vs. Thomas T.) decided on 12/12/2006, the petitioner is entitled for reimbursement of medical bills at the rate which is applicable in recognized hospital notified under Rules of 1970. In case of Anil Kumar Surolia Vs. State of Ral. (supra), Hon'ble Division Bench of this Court has held that in emergent situation, employee can avail medical treatment outside Rajasthan. Para 6 and 8 of the aforesaid judgment is as follows : “6. In the factual background as detailed above, we are of the firm view that even if the required treatment was available in SMS Hospital at Jaipur or other approved hospitals in the State of Rajasthan, the petitioner was indeed entitled to medical reimbursement if he had got the treatment elsewhere necessitated on account of circumstances beyond his control. Self preservance is the first instinct in every human being. Person having suffered heart attach is not expected to await treatment at a far off distance as time is the essence in saving valuable life in such matter. There is every risk of a person breathing his last if he has to await treatment of heart attack. In the circumstances, even if such medical treatment as obtained by a Government - 6 - employee be available in the State itself, he shall be still entitled to medical reimbursement for the treatment obtained elsewhere if the same is necessitated on account of circumstances beyond his control. In emergent situation thus it is not incumbent for a patient to obtain medical treatment only in approved hospitals of the Government. We would have discussed the matter in further details as per provisions of the Rajasthan Civil Services (Medical Attendant) Rules but it is conceded during the course of arguments that if the petitioner was to obtain medical treatment at SMS Hospital at Jaipur or the other Government approved hospitals in the State of Rajasthan, he would have been paid the same amount for the treatment he ultimately got from Krishna Heart Institute. If that be a fact, and which as mentioned above, is conceded, we are of the view that the stand taken by the State Government is obdurate and wholly uncalled for. We could imagine if perhaps the petitioner had spent far more and was claiming the same while getting treatment in a non-approved hospital. Government in any case had to pay the same amount spent by the petitioner at Krishna Heart Institute even if the petitioner was to get treatment in SMS Hospital or other approved hospital in the State of Rajasthan. This Court cannot but deprecate the attitude of the Government in rejecting justified claims in teeth of the recommendations made by this Court. Registrar General of this Court indeed supported - 7 - the cause of the petitioner but the favourable recommendations made by this Court have been turned down on wholly untenable grounds.” “8. The preliminary objections raised by the State as have been noted above need to be straightaway rejected. Delay in this case has actually been caused by the State in refusing a justified claim despite repeated recommendations made by this Court. In so far as right of petitioner for reimbursement of mediclaim is concerned, it could not be disputed during the course of arguments that a Government employee is entitled to the same. Simply because the right of a Government employee for medical reimbursement may not be a fundamental right it cannot be said that writ petition would not be competent. Once such a right is recognised, denial thereof would certainly entitle a citizen to invoke jurisdiction of this Court under Article 226 of the Constitution of India.” In the case of Thomas T. (supra), the Division Bench of this court has observed as under: “It is highly unjust to insist upon a patient suffering from heart attack with high risk to his life not to reach the nearest available medical centre where his ailment can be attended to and his life is saved but to insist to reach distant centre after - 8 - waiting for referral exercise and risk his life. In the case of heart attack immediate and earliest possible aid is the need. If the State has not or cannot provide medical facility to meet such contingencies at more and more centre, it cannot insist upon the suffering civil servant not to avail nearest medical facility where he can reach early and save his life at the the threat of denying him reimbursement of medical expenses to which he is otherwise entitled to. In this connection, reference is made to State of Punjab vs. Ram Lubhaya Bagga & Ors [ (1988) 4 SCC 117 ] in which the Supreme Court approved the principle that in case of emergency the medical treatment obtained by an incumbent in service at any private hospital, the reimbursement can be claimed at the rate prevalent in the AIIMS. The reimbursement policy of the State to reimburse the medical expenses of treatment taken at private hospital at the rate at which such treatment is available at AIIMS was upheld by the Court inter alia on the ground that decision of the appellant State to restrict the financial assistance to the employees for medical treatment within the resources of the State was not violative of Article 21 of the Constitution, which was in the light of new Policy stated by the State Government according to which treatment could be taken from any hospital but reimbursement of medical expenses was to be restricted to such amount, which for like treatment is to be incurred if the treatment were to be taken at AIIMS. - 9 - Wherever the State Policy of reimbursement of medical expenses requires strait jacket procedural requirement to be fulfilled before obtaining treatment from Government or designated hospital, the same has not been approved by the Supreme Court. It was observed that procedure laid down for the same was very onerous, sometime not workable specially in emergency cases. The procedure which is required is that an application seeking approval for such treatment in desired hospital has to be made to the Director of Health and Family Welfare two months in advance duly recommended by CMO/Medical Superintendent indicating that treatment for such disease is not available in the Government hospital. It also required that in case of an emergency such application is to be authenticated by CMO/MS to be made 15 days in advance. The court observed that such procedure deprive persons from getting better treatment at other places. Some of the serious diseases do no knock or warn through bell giving them time. Emergency cases require immediate treatment and if with a view to comply with the procedure one has to wait then it could be fatal. One may not in such cases live, if such a procedure is strictly followed. Thus, while the Supreme Court approved the principle to the extent State policy restricts the reimbursement of medical expenses with reference to designated hospital rates, denial of reimbursement of medical expenses altogether - 10 - merely on the basis of the place where treatment has been taken because of not following the procedure laid down for securing such treatment was not approved.” In view of above discussion, in my opinion, although the petitioner got medical treatment in the private hospital but it is also admitted position of the case that he got treatment in emergent situation in the private hospital and paid huge amount for his treatment. Therefore, in the interest of justice, I deem it just and proper to direct the respondents to reimburse medical bills of the petitioner at the rate, which is applicable in the recognized hospital/institution notified under the Rules of 1970. It is also made clear that the petitioner will be entitled for medical reimbursement only for those expenditures which are enumerated in the Rules of 1970. Accordingly, this writ petition is allowed. The respondents are directed to reimburse the medical bills to the petitioner at the rate which is applicable in the recognized Government Hospitals/institutions notified under the Rules of 1970 within a period of three months from today. (GOPAL KRISHAN VYAS), J. pankaj baweja