SCA/49020/2008 1/11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 490 OF 2008 For Approval and Signature: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA ====================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ====================================== GAJENDRASINH G. SOLANKI - Petitioner(s) Versus STATE OF GUJARAT & ORS. - Respondent(s) ====================================== Appearance : Mr. Paresh Upadhyay for Petitioner(s). Ms. Asmita Patel, AGP for Respondent(s) : 1 - 4. ====================================== CORAM : HONOURABLE MR.JUSTICE RAJESH H.SHUKLA Date : 21/10/2008 ORAL JUDGMENT The present petition has been filed by the petitioner for the prayer that the respondent-Authorities may be directed to sanction and SCA/49020/2008 2/11 JUDGMENT pay Rs.64,821/-, which the petitioner has incurred for his medical treatment by way of reimbursement on the grounds set out in the petition. 2. The facts of the case briefly summarised are that the petitioner was in the service of the State Government and has retired on attaining the age of superannuation in July-1993. At the time of the retirement, he was working in the cadre of Accounts Officer (Class-I) and was posted as District Assistant Examiner, Local Fund Accounts, Ahmedabad. It is also averred that on 17th July, 2007, the petitioner had severe problem with his left leg and therefore, he was immediately taken to Sterling Hospital, Ahmedabad by the family members. On investigations, it was found that there was a blockage on vein causing obstruction in the blood circulation and therefore, as per the medical advise, by-pass surgery was required to be performed urgently and therefore, on the next day, i.e. on 18th July, 2007, by-pass surgery was performed on the left leg of the petitioner. It is the case of the petitioner that he was hospitalised upto 24th July, 2007 in the general ward and he paid total amount of Rs.64,821/- to the hospital under different heads like operation charges, room charges, medicines, investigations, etc., as mentioned in detail in the bill. Accordingly, the petitioner claimed the said amount from the Government on 31st July, 2007 by submitting an application in the prescribed format to the Treasury Office. However, the SCA/49020/2008 3/11 JUDGMENT claim of the petitioner has been turned down by the respondent- Authorities. In support of the petition, the petitioner has produced the bills of Sterling Hospital and also Government Resolution dated 9th September, 2005. 3. An affidavit-in-reply has been filed by the Additional Director, Medical Services, Health and Family Welfare Department, respondent No.2, contending inter alia that in the year 1988, the Government has framed the Rules known as “Gujarat State Service (Medical Treatment) Rules, 1988” (“the Rules” for short) for the employees of the State of Gujarat for providing medical treatment. It provides a list of hospitals from where the Government employee like the petitioner can take the medical treatment, which is permissible for reimbursement. It is also contended that in the present case, the petitioner has taken the treatment of “peripheral angiography” and “popliteal vein by-pass surgery” for the left leg from Sterling Hospital at Ahmedabad. Such treatment is available at V.S. Hospital and Civil Hospital at Ahmedabad. It is, therefore, contended that the petitioner is not entitled for reimbursement of the expenses of such treatment. It is also reiterated and stated that such persons, who take the treatment from the hospitals approved by the State Government, are entitled for reimbursement of the medical expenses. It has been clarified that the State Government has approved certain hospitals for taking the SCA/49020/2008 4/11 JUDGMENT treatment for some special ailments like heart ailment, cancer, kidney, etc. and Sterling Hospital is one of the hospitals approved for the treatment of the heart ailment. However, it is contended that the petitioner has taken the treatment of “popliteal vein by-pass surgery” on the left leg, which is not included in the Resolution dated 9th September, 2005. It has also been contended that the petitioner has taken the treatment of “popliteal vein by-pass surgery” which was operated on the left leg and the petitioner has not taken heart surgery (coronary artery by-pass surgery) and therefore, the claim of the petitioner has been turned down. Therefore, the petitioner is not entitled to get any amount as per the Government Resolution dated 9th September, 2005. Further, it has been contended that as per the Resolution of the Finance Department dated 24th February, 1988, the expenses incurred in taking the treatment from the private hospital in exceptional circumstances is permitted. Another circular dated 1st April, 2000 is also issued by the Health & Family Welfare Department for the purpose of reimbursement and the procedure is also prescribed for such exceptional circumstances. It is also contended that in this case, the petitioner has to submit a proposal to the Finance Department through proper channel and the Finance Department has to take approval of the Health and Family Welfare Department for the purpose of reimbursement. SCA/49020/2008 5/11 JUDGMENT 4. Mr. Paresh Upadhyay, learned Advocate for the petitioner, submitted that because of pain in the leg, the petitioner was admitted in the hospital by the family members and the “popliteal vein by-pass surgery” was performed on the left leg for the purpose of heart ailment. For that purpose, he referred to the bill of Sterling Hospital at page Nos.10, 11 and 12 and emphasised that it was part of package and also part of the treatment and hence, the reimbursement has to be made as per the Government Resolution dated 9th September, 2005. 5. Ms. Asmita Patel, learned Assistant Government Pleader, referred to the Government Resolution dated 9th September, 2005 and pointedly drawn the attention to the fact appearing in the annexure to this Government Resolution that what types of ailments are covered for reimbursement if the treatment is taken either at the Government Hospitals, U.N. Mehta Institute of Cardiology and Research Centre and list of approved hospitals is also provided, which includes Sterling Hospital at Ahmedabad. However, referring to the annexure to the said resolution at page 28, Item No.15, she pointed out that Rs.9,100/- is permissible reimbursement for the “peripheral angiography” and referring to Item No.2, she pointed out that for coronary artery by-pass surgery, Rs.60,000/- is permissible reimbursement with Rs.6,000/- for medicines. She also referred to the bill produced by the petitioner at SCA/49020/2008 6/11 JUDGMENT page 10, wherein case type is shown as “Angiography Package” and the package amount for “peripheral angiography” is shown as Rs.9,000/-. She, therefore, submitted that the said amount of Rs.9,000/- has been reimbursed to the petitioner and what has not been reimbursed is the expenses incurred by the petitioner towards the “popliteal vein by-pass surgery”, which is not permissible and covered by the aforesaid Government Resolution dated 9th September, 2005. She submitted that it was a surgery for the leg and there was no such emergency and prior permission or approval was required to be obtained by the petitioner and then only, the claim for reimbursement could have been made by the petitioner. She, however, submitted that as the petitioner has not applied earlier nor there was any emergency, the case of the petitioner would not be covered by the aforesaid Government Resolutions dated 9th September, 2005 and 24th February, 1988 as well as subsequent clarification by way of Circular dated 1st April, 2000, which permit the Government employee to take treatment at the private hospitals in exceptional circumstances. It was, therefore, submitted that the decision dated 10th April, 2008 conveyed by the Commissioner, Health, Medical Services & Medical Education (Medical Department), Gandhinagar, turning down the prayer of the petitioner for reimbursement, is just and proper. SCA/49020/2008 7/11 JUDGMENT 6. In support of the case of the petitioner, Mr. Paresh Upadhyay, learned Advocate, referred to and relied upon a judgement of this Court in the case of Arvindkumar Dahyabhai Patel vs. Commissioner of Health & Welfare Department, reported in (2003) 2 GLH 954, and submitted that referring to the Gujarat Service (Medical Treatment) Rules, 1988 for the purpose of reimbursement of medical expenditure, it has been observed that it is not necessary to take prior permission and therefore, the impugned decision is bad. He also relied upon the judgement of the Division Bench of this Court dated 20th June, 2007 passed in Letters Patent Appeal No.1511 of 2006 in Special Civil Application No.24709 of 2006, again relating to the similar issue of medical reimbursement referring to the same Government Resolution, and submitted that it may not be necessary or practical in every case to get the prior approval or prior permission and it can be dispensed with where delay may be dangerous to the health of the patient. He, therefore, submitted that in the facts of the present case also, the petitioner was removed to the hospital in the emergency and thereafter, during the investigation, it was found that “popliteal vein by-pass surgery” is necessary, for which the “peripheral angiography” was performed and therefore, it was a part of the treatment for which the reimbursement has to be made. SCA/49020/2008 8/11 JUDGMENT 7. In view of the rival submissions, it is required to be considered that whether the petitioner is entitled to claim any relief as prayed for granting reimbursement of the medical expenses incurred by him. The Government has framed the Rules known as the Gujarat State Service (Medical Treatment) Rules, 1988 and it is clarified in the affidavit in reply filed by Dr. K. A. Mithawala Additional Director, respondent No.2 that normally, the employee has to take the treatment either at the Government hospital or hospitals approved and as provided in the Government Resolution dated 9th September, 2005. Moreover, it is also clarified that in case of emergency, by way of exception, the reimbursement could be claimed subject to the procedure, as provided in the Government Circular dated 1st April, 2000. A reference can be made to the Circular dated 1st April, 2000 which again provides that in case of the ailments of heart, cancer, kidney, the employee may be required to take the treatment at the private hospital or even outside the State and in such circumstances, what particular procedure has to be followed, has been clarified. Moreover, the Finance Department vide the Resolution dated 24th February, 1988 has prescribed a procedure in such cases, subject to which the approval for such expenses could be granted. SCA/49020/2008 9/11 JUDGMENT 8. In the facts of the present case, admittedly, the petitioner has undergone the treatment of “popliteal vein by-pass surgery” on the left leg, for which the reimbursement has been claimed and turned down. Admittedly, the petitioner has not undergone the coronary artery by-pass surgery and he has undergone “peripheral angiography” and spent Rs.9,000/-, for which he has been reimbursed Rs.9,000/- in view of Item No.15 of the Government Resolution dated 9th September, 2005. The bill of Sterling Hospital at page 10 refers to “Angiography Package” and the “peripheral angiography” has cost Rs.9,000/- which has been admittedly reimbursed to the petitioner. Therefore, the claim made by the petitioner is not covered by the Government Resolution dated 9th September, 2005 and also the Circular dated 1st April, 2000. The Government Resolution dated 9th September, 2005 has specifically clarified, which has also been referred to in the affidavit in reply, that some of the treatments, which could be available at the Government hospitals or other hospitals approved by the Government, could be availed of and reimbursement could be provided. Moreover, in case of the ailments of heart, cancer and kidney, if the treatment is taken by the patient in emergency, then also, the reimbursement could be made. The case of the petitioner is not covered by such circumstances. Though Mr. Upadhyay has submitted that due to the pain in the leg, he was admitted in Sterling Hospital by the family members and therefore, he has SCA/49020/2008 10/11 JUDGMENT undergone “popliteal vein by-pass surgery” on the left leg, it is not the specific case of the petitioner that as it was an emergency, he has undergone the “popliteal vein by-pass surgery” on the left leg without any intimation or prior approval. Even if it is assumed that it was necessary for removal of the blockage, it was not urgent and in fact, as the matter stands, the petitioner is not required to undergo coronary artery by-pass surgery for the heart and he had to only undergo the “popliteal vein by-pass surgery” on the left leg. This would suggest that it was not urgent which would cover his case for reimbursement of medical expenses by the aforesaid Government Resolution. The fact that the petitioner has undergone only “peripheral angiography” establishes that there was no urgency as would entitle the petitioner to get the benefit of exceptional circumstances of urgency and in fact, even for “peripheral angiography”, an amount of Rs.9000/- has been reimbursed to the petitioner. 9. Therefore, even if the submission made by Mr. Upadhyay that “peripheral angiography” was required to be performed first before the “popliteal vein by-pass surgery” is performed on the left leg, is accepted, then also, there was no urgency and the petitioner could have either taken the treatment at the hospitals approved as per the Government Resolution dated 9th September, 2005 or he could have SCA/49020/2008 11/11 JUDGMENT taken prior approval, as required. Therefore, the judgement in the case of Arvindkumar Dahyabhai Patel would not have any application to the facts of the present case as the facts were different. Similarly, the judgement of the Division Bench of this Court in Letters Patent Appeal No.1511 of 2006 would also not apply to the facts of the present case. 10. Moreover, as contended in the affidavit-in-reply filed by respondent No.2, even in exceptional circumstances also, the proposal is required to be made to the Finance Department through proper channel and the Finance Department has to take approval of the Health and Family Welfare Department for reimbursement, as provided in the Government Circular dated 1st April, 2000. Therefore, in the facts and circumstances of the case, the petitioner is not entitled to the relief, as prayed for, and the petition deserves to be dismissed in limine. 11. In the result, the present petition stands dismissed. Rule is discharged. No costs. [Rajesh H. Shukla, J.] kamlesh*