LPA No. 10 of 2008 [1] IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH LPA No. 10 of 2008 Date of Decision: 23.01.2008 State of Haryana and others ......Appellants through Mr. Rameshwar Malik, Addl. A.G. Haryana . versus B.S.Nain .......Respondent CORAM: HON'BLE MR. JUSTICE VIJENDER JAIN, CHIEF JUSTICE HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? ***** Vijender Jain, Chief Justice (Oral) CM No. 48 of 2008 C.M. allowed. Annexures A-1 to A-3 be taken on record. Exemption from filing certified copies of Annexures A-1 to A-3 is also granted. CM No. 49 of 2008 C.M. allowed. Delay of 19 days in refiling the appeal is condoned. LPA No. 10 of 2008 [2] LPA No. 10 of 2008 The State of Haryana has impugned order dated 5.9.2007 passed by the learned Single Judge, on the ground that the instructions dated 6.5.2005 by which the reimbursement policy was reviewed by the State of Haryana came in operation in the month of May, 2005 whereas the kidney transplant of the respondent was done in the year 2000 and at that time the reimbursement policy was not in vogue. Mr. Rameshwar Malik, Addl. A.G. Haryana has contended that the application of the policy retrospectively by the learned Single Judge in the impugned order is bad in law. We have given our careful consideration to the arguments advanced by learned Addl. Advocate General, Haryana. The respondent joined the Excise & Taxation Department of the State of Haryana as Taxation Inspector in December, 1975. In April, 2000, the respondent came to know that he was suffering from chronic renal failure and after getting sanction from the Chief Medical Officer, Fatehabad, he got himself operated for kidney transplant at Batra Hospital and Medical Research Centre, New Delhi on 30.9.2000. The kidney was donated to the respondent by his cousin sister. After the kidney transplant, the respondent submitted his medical bills for reimbursement. The medical bills for the treatment of donor i.e. cousin of the respondent were also submitted. The bills of kidney transplant of the respondent were reimbursed by the State. However, no reimbursement was made to the respondent for the treatment which the donor underwent at Batra Hospital. Learned Single Judge has held that in successful kidney transplant, the operation for removal of the kidney of the donor is also a LPA No. 10 of 2008 [3] necessary corollary. A kidney transplant cannot be done until and unless a kidney is donated by some person. It is in this circumstance that the learned Single Judge held that the order passed by the appellant denying the medical reimbursement to the respondent was not based on sound principles and reasoning. The argument of learned Addl. Advocate General that there was no reimbursement policy when the kidney transplantation took place and the reimbursement policy which came into existence on 6.5.2005 could not have been applied retrospectively is not correct. As a matter of fact, the State of Haryana had not formulated a policy for donor when kidney transplant took place. The policy ought to have been framed for the persons who have donated kidney for being transplanted to the patient. In the year 2005 realizing its mistake, the State of Haryana has reviewed or amplified its policy with regard to the donor of the kidney and Clause 5 of that policy with regard to kidney donor is reproduced as below:- (5) “the reimbursement on the expenditure for operating upon the donor is permissible only if the treatment has been taken in a government/approved hospital as it is a planned procedure.” Reimbursement of the expenditure for operating upon the donor is permissible only if the treatment has been taken in a government/approved hospital as it is a planned procedure. This policy does not envisages its applicability only to a donor who is a government employee of the State of Haryana or is dependent of the person on whom the kidney transplant has been done, but cover all the donors. Therefore, the reasoning of appellant rejecting the claim of the respondent for reimbursement on the basis of these extraneous factors, which are not LPA No. 10 of 2008 [4] contemplated under the policy of the State was totally erroneous for determining the quantum of reimbursement to be made to the donor. Even if the matter is not tested under the present policy, then also, the reasoning of the respondent that a person who has to be reimbursed the claim being a donor must be an employee of the State of Haryana or a dependent of the person who is seeking kidney transplant, is without any basis. We could have understood if rejection of reimbursement would have been on the ground that there was no policy of the State of Haryana with regard to reimbursement to the donor but there being a policy on the date when the claim was rejected, the arguments which has been advanced by learned Additional Advocate General that only reimbursement would be permissible in case a donor is an employee of the government of Haryana or dependent of the patient, is without any basis and totally irrational. We find no infirmity in the reasoning given by learned Single Judge and there is no merits in this appeal. Dismissed. (VIJENDER JAIN) CHIEF JUSTICE (KANWALJIT SINGH AHLUWALIA) JUDGE 23.01.2008 'ravinder'