1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR <<>> :: O R D E R :: Kifayat Hussain Vs. State of Rajasthan & Ors. S.B. CIVIL WRIT PETITION NO. 3095/2001. Date of Order :: 30th June 2008. PRESENT HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.M.S.Singhvi with Mr.Akhilesh Rajpurohit and Mr.Vineet Dave for the petitioner Mr.Rameshwar Dave, Addl. Govt. Counsel for the respondents REPORTABLE BY THE COURT By way of this writ petition, while putting a challenge to the phraseology of Rule 7(1) of the Rajasthan Civil Services (Medical Attendance) Rules, 1970 ('the Rules of 1970'), the petitioner has prayed for quashing of the communication dated 25.06.2001 (Annex.9) and directions to the respondents to make payment of the expenditure incurred by him for bypass 2 surgery at Escorts Heart Institute, New Delhi (hereinafter also referred to as 'Escorts' for short). While pointing out that he entered the services of Government of Rajasthan in the Department of Revenue as LDC in the year 1968, was promoted to the post of UDC, and is working on such a post in the Collectorate at Banswara, the petitioner has averred that he suffered heart attack in the month of September 1999 and after primary treatment at Banswara, he was referred to and was treated at RNT Medical College Hospital, Udaipur; that after treatment at Udaipur for some time, he was referred for investigation and treatment to SMS Hospital, Jaipur (hereinafter also referred to as 'SMS’ for short) under the communication dated 15.06.2000 (Annex.1); that he went to Jaipur and contacted Dr.R.K.Madhok, Professor and Head, Department of Cardiology, SMS Medical College, Jaipur; that he was admitted at SMS and thereafter angiography was conducted on 12.07.2000 in which two blockages in coronary artery were discovered and he was advised Coronary Artery Bypass Surgery (CABG). The petitioner has alleged that due to improper angiography, a clot developed in his right femoral artery and he was also not satisfied with the result of angiography and, therefore, expressed that he would like to have his examination and treatment at Escorts Heart Institute, New 3 Delhi. According to the petitioner, he was told that reference to Escorts could be made only upon giving in writing his desire for such reference on account of his family circumstances and he shall have to further admit in writing to claim only the expenses that would be incurred in the event of his treatment at Jaipur. The petitioner has alleged that looking to the situation he was in, he had no option and submitted the application dated 18.07.2000 (Annex.3) to the said Dr.R.K.Madhok for reference to the Escorts Heart Institute, New Delhi but stated that he was making such application with reference to the angiography report dated 12.07.2000. The petitioner has pointed out that an order dated 20.07.2000 (Annex.4) was issued recommending his case to the Escorts Heart Institute but in the said order it was specified that the facilities being available at SMS, financial entitlement would be that of SMS Hospital, i.e., Rs.50,000/- only. According to the petitioner, upon his visiting Escorts Heart Institute when he was again subjected to angiography on 01.08.2000, his apprehension came true because in such angiography, three blockages in coronary artery were found; and then, he was treated for the clot that had developed during the course of angiography at Jaipur; and, on the basis of angiography at Escorts, he was subjected to three coronary artery bypass grafting and was discharged from the Hospital 4 on 14.08.2000 (Discharge Summary Annexure-5). According to the petitioner, the Escorts Heart Institute, New Delhi raised a bill of Rs.2,10,400/- but on his request, while granting subsidy of Rs.45,400/-, charged an amount of Rs.1,65,000/- (Bill Annexure-6). The petitioner has pointed out that after complete recovery, he submitted a representation to the Principal Secretary, Department of Finance, Government of Rajasthan, Jaipur on 25.11.2000 (Annex.7) through the Collector, Banswara making a request for payment of the remaining amount of Rs.1,15,000/- in addition to Rs.50,000/- paid to him to meet the expenditure incurred in connection with his bypass surgery at New Delhi; that the District Collector recommended his case for grant of medical reimbursement to the tune of Rs.1,65,000/- on 12.04.2001 (Annex.8); but, under the impugned communication dated 25.06.2001 (Annex.9), his case for grant of medical reimbursement to the tune of Rs.1,65,000/- has been turned down. The petitioner has averred that the grant of medical reimbursement to the employees of the State Government is governed by the Rules of 1970; that Rule 7 thereof provides for treatment of a disease for which treatment is not available in the State; and that Escorts has been notified as one of the referral Hospitals under sub-rule (3) of Rule 7 of the Rules of 5 1970. The petitioner has further submitted that the expression ''a disease for which treatment is not available in any Government Hospital in the State'', as mentioned in Rule 7(1) of the Rules of 1970 should be treated to mean that the disease is the one for which proper treatment is not available; and has contended that in respect of open heart surgery, 'proper' treatment facility is not available in the State of Rajasthan. According to the petitioner, the action of the respondents in rejecting his application for grant of medical reimbursement in respect of expenditure incurred by him in relation to the open heart surgery at Escorts Heart Institute, New Delhi is illegal because under Rule 7 of the Rules of 1970, a Government servant who is suffering from a disease for which treatment is not available in any Government Hospital in the State is entitled to reimbursement of the expenditure incurred by him provided that he has undertaken treatment at the Hospital or Institute mentioned in Appendix 11. Further, according to the petitioner, it shall be deemed that he was suffering from the disease for which he could not have been treated in Government Hospital in the State because at SMS neither angiography was conducted properly nor diagnosis was correct; that he suffered clot in the right 6 femoral artery on account of improper angiography conducted at SMS; that in the angiography conducted at SMS, two blockages in coronary artery were stated whereas upon his examination at Escorts, it was revealed that result of angiography conducted at SMS was not correct inasmuch as he was suffering from three blockages. According to the petitioner, had he been operated at Jaipur, one blockage would have gone untreated and could have had disastrous consequences. The petitioner maintains that upon apprehension of not receiving proper treatment at SMS, Jaipur, he had asked for examination at Escorts Heart Institute that is available in the country and is the approved one too; that it was his right of self-preservation and he was entitled to exercise such right by virtue of Article 21 of the Constitution of India and having been treated at one of the notified institutions under Rule 7(3) of the Rules of 1970, he could not be denied reimbursement of the expenditure incurred by him in the said Institute. In relation to his undertaking in writing, the petitioner has averred that at the relevant time, he was suffering from acute heart problem and had serious doubts about the medical facilities available in Rajasthan; that he could not have put his life into peril by getting operated at Jaipur; and that in the circumstances, his undertaking being not of free will but 7 obtained under duress, remains unconscionable and of no adverse effect. Similarly, according to the petitioner, the condition as imposed in the order dated 20.07.2000 remains illegal, arbitrary and unreasonable. The respondents Nos.1 and 2, the State of Rajasthan and the Principal, SMS Medical College, Jaipur in their reply to the writ petition have taken preliminary objection that the petition involves disputed questions of fact that cannot be decided in writ jurisdiction. In relation to the averments in the writ petition, while not disputing the facts about the petitioner having been treated at RNT Medical College, Udaipur and at SMS Hospital, Jaipur, the respondents have averred that petitioner's coronary angiography on 12.07.2000 revealed two vessel disease (Cx 100% & LAD 80%). The respondents have elaborated that there are three major arteries in the heart viz., Right Coronary Artery, Circumflex Artery and LAD; and, depending upon the involvement of these three arteries, a patient is labelled as to be suffering from single vessel, two vessel, or three vessel disease. If one major artery is blocked and its sub-branches are also blocked, the category remains as single vessel disease. The respondents have alleged that the petitioner was trying to confuse the two aspects about his having two vessel disease and having had three grafts. With reference to the discharge slip of the petitioner from Escorts, 8 the respondents have pointed out that the petitioner was indeed found having two vessel disease; and maintain that the petitioner had 100% block in circumflex artery and 80% block in LAD. It has been contended that how many grafts are to be put in a particular case is finally decided by the surgeon on the table; and that angiography of SMS never mentioned the number of grafts needed. It has also been pointed out that the petitioner has not enclosed the copy of angiography report of Escorts Heart Institute. While stating that coronary angiography is being done at SMS regularly, safely and with the results comparable with any Centre in the world, the respondents maintain that angiography and treatment of such patient is available in SMS and have denied that petitioner was suffering from any disease for which he could not have been treated in the Government Hospital in the State. It has also been submitted that there was no basis for the petitioner making allegation of a clot having developed in his right femoral artery as a result of angiography conducted at Jaipur; and it has been pointed out that such a clot could develop if the patient does not keep his concerned leg immobile for eight hours following angiography. Further, according to the respondents, in the discharge slip of Escorts, nothing has been mentioned about any specific surgery or intervention on the said femoral right 9 artery at New Delhi and it has been pointed out that at the time of discharge, following coronary angiography at Jaipur, all the peripheral pulses of the petitioner were normal. While denying the allegations of any suggestion having been made to the petitioner to give in writing about the family circumstances for the purpose of reference to Escorts, the respondents have submitted that the patient is referred outside the State for treatment and is given reimbursement at the rate of All India Institute of Medical Sciences, New Delhi if it is considered that treatment of said ailment does not exist in Rajasthan. With reference to the application submitted by the petitioner (Annex.3), it is alleged that the petitioner voluntarily submitted the application for being referred to Escorts; and upon the said application, a panel of three doctors was constituted to examine the case of the petitioner and the panel recommended on 20.07.2000 that the petitioner requires coronary angiography bypass surgery, facilities whereof were available in Rajasthan and the approximate expenditure involved was Rs.50,000/- but, as the patient and his family wanted the same to be performed at Escorts, the panel recommended for permission to go for treatment as per the request but then, financial entitlement would remain that of SMS Hospital, Jaipur. The respondents maintain that Rule 7 of the Rules of 10 1970 is neither illegal nor arbitrary nor violative of Articles 14 and 21 of the Constitution of India. The respondents submit that adequate provision for securing health for the citizens of the State as well as the employees is available in the State; and that only because the petitioner somehow gathered the impression that he would not get adequate treatment within the State, it cannot be the reason enough for him to claim reimbursement for the treatment taken. The respondents maintain that there is no difference of opinion between the angiography report of SMS Hospital and Escorts Hospital; that SMS angiography report does not mention the number of grafts to be put on the patient for that is decided by the surgeon before and during surgery; that the number of grafts were not discussed with the petitioner at Jaipur and he was never told that only two grafts were needed. It is also submitted that the petitioner is not competent to judge the professional skills of the doctors at SMS; and that not a word has been expressed adversely by the Escorts in relation to the reports of SMS in the discharge ticket. The petitioner has filed a rejoinder with the submissions that question of fact raised in the writ petition could be determined on the basis of affidavits and the cause of the petitioner needs consideration by this Court. It is reiterated that angiography conducted at SMS did not give out correct 11 results and did not point out exact number of blockages and this aspect, according to the petitioner, is fortified from the fact that doctors at Escorts were not convinced with the correctness of angiography of SMS and, therefore, did not operate the petitioner on the basis of such angiography and another angiography was conducted at Escorts. The petitioner would maintain that the angiography conducted at SMS was found incorrect in the angiography conducted at Escorts and further that angiography at SMS resulted in a clot in his right femoral artery which could have resulted in amputation of leg had he not been timely admitted to Escorts. It has been denied that category of blockage remains that of one category even when there are more than one blockages and in this regard, the petitioner has posed a question as to where the third blockage has at all been shown in the angiography diagram dated 12.07.2000 even if the third blockage was in a sub- artery? According to the petitioner, the fact that he was administered bypass surgery with three grafts clearly goes to show that there were three blockages and the same were not located in the angiography conducted at Jaipur. It is also denied that the surgeon decides the number of grafts on the table and, the petitioner contends, such decision is required to be taken well in advance and is taken on the basis of angiography report. 12 The petitioner has pointed out that so far angiography report at Escorts is concerned, a soft copy has not been made available but hard copy of the same in the form of CD has been given and he was prepared to submit the same before the Court. In relation to Rule 7, the petitioner submits that such rule contemplates level of facilities of treatment available in the State and the level of facilities available at Jaipur being not of the same standard which is available in Escorts, he is entitled to reimbursement of the expenditure incurred by him at Escorts. The petitioner contends that availability of treatment as contemplated by Rule 7 of the Rules of 1970 means availability of treatment in the perfect and specialised manner and a person cannot be subjected to experimentation as was proposed to be done by the doctors at Jaipur. The petitioner has questioned the limitation imposed on reimbursement while referring to reimbursement of MLAs for getting bypass carried out abroad, has further referred to certain newspaper reports and has alleged that serious doubts were raised concerning administration of treatment to the former Governor of Rajasthan. According to the petitioner, he was under a serious threat to life had he undergone bypass surgery at Jaipur and in such a situation, the treatment would be deemed to be not available in the State within the meaning of Rule 7 of the Rules of 1970. 13 Learned counsel for the petitioner referred to the fact situation of the case and submitted that the petitioner had to go to Escorts in the act of self-preservation when the facilities at SMS were not found satisfactory. According to the learned counsel, when neither angiography was proper nor its report was correct, the petitioner could not have left himself to be made a subject of experimentation and when he could not have expected them to treat properly, it was reasonable for the petitioner to leave SMS and to go to Escorts for proper and specialised treatment. Learned counsel pointed out that even the femoral artery blockage occurred because of fault in angiography at SMS and had the petitioner not been adequately treated at Escorts, he would have even suffered loss of his leg. Learned counsel referred to Rule 7 of the Rules of 1970 and submitted that for its true import, the expression ‘a disease for which treatment is not available in any Government Hospital in the State’ cannot be read literally and so far ‘treatment’ is concerned, it means proper, adequate and specialised treatment; and else the Rule is rendered unconstitutional and is hit by Article 21 of the Constitution of India. Learned counsel has referred to and relied upon the decisions in Smt. Harbir Kaur Vs. State of Rajasthan and others: 2004 (4) WLC (Raj.) 865; Laxman Taneja Vs. The State of Rajasthan and others: 2005 (3) WLC (Raj.) 451; State 14 of Punjab and others Vs. Mohinder Singh Chawla etc.: AIR 1997 SC 1225; Surjit Singh Vs. State of Punjab and others: (1996) 2 SCC 336; B.L.Gaur Vs. Chief Secretary and others: 2007 WLC (Raj.) UC 469; Shankerlal Vs. State of Rajasthan and others: 2000 (3) RLR 596; and Kailash Prasad Gupta Vs. State of Rajasthan and others: 2005 (2) RLR 436. Learned Government Counsel has vehemently opposed with the submissions that the writ petition essentially raises disputed questions of fact about the correctness of the result of angiography and about the medical facilities available at SMS and such a dispute cannot be gone into in the writ petition. Learned counsel further submitted that the State cannot be forced to provide reimbursement of every kind of expenditure incurred by an employee on his treatment and, in the true operation of the rules, it has to be certified by the Principal of Medical College that treatment of a particular disease is not available in any Government Hospital in the State and that it is considered absolutely essential for recovery of the patient to have him treated at a Hospital outside the State. Learned counsel submitted that in the present case, the petitioner has voluntarily chosen to take the treatment at Escorts that has not been denied to him but even at the time of allowing his application, it was made clear that his entitlement would only be of expenditure at SMS i.e., Rs.50,000/- and the 15 petitioner is not entitled to claim reimbursement of the entire amount spent by him at Escorts. Learned counsel has referred to and relied upon the decisions in State of Punjab and others Vs. Ram Lubhaya Bagga and others: (1998) 4 SCC 117; The State of Rajasthan and others Vs. Syed Manzoor Ali: 2006 WLC (Raj.) UC 704; Anil Kumar Surolia Vs. The State of Rajasthan and others: 2005 (3) WLC (Raj.) 396; Khuman Singh Mehta Vs. State of Rajasthan and others: 1996 WLC (Raj.) UC 61; and Punjab State Electricity Board and another Vs. Jasbir Singh: AIR 1999 SC 979. Having heard learned counsel for the parties, having scanned through the record, and having given anxious consideration to the matter, this Court is clearly of opinion that the petitioner is not entitled to the relief as prayed for and this writ petition deserves to be dismissed. Before proceeding further, apposite it shall be to refer to Rule 7 of the Rules of 1970 and the fact situation with the ratio of the decisions cited by learned counsel for the parties. Rule 7 of the Rules of 1970 reads as under:- "7. Treatment of a disease for which treatment is not avail- able in the State:- (1) A Government servant and the members of his family suffering from a disease for which treatment is not avail- able in any Government Hospital in the State shall be enti- tled to medical attendance and treatment to the extent in- dicated 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/Di- rector of Medical & Health Services on the basis of opinion 16 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 re- covery of the patient to have treatment at a hospital out- side 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 ac- count of medical attendance and treatment including charges for surgical operations and ordinary nursing facili- ty. (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 Ra- jasthan Travelling Allowance Rules. Such travelling al- lowance 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 at- tendant 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 ad- vice the treatment outside the State was undertaken.’’ Taking up the decisions cited by the learned counsel for the petitioner, noticeable it is that in the case of Surjit Singh (supra) the employee had undergone open heart surgery in England without subjecting himself to medical examination as per the policy of the Government. The Hon’ble Apex Court noticed that the employee was claiming reimbursement at the 17 rates applicable in Escorts; and found it fair and just that he be paid at the rates admissible as per Escorts that was one of the designated Hospitals. The Hon’ble Court held that self preservation of one’s life is the necessary concomitant of the right of life enshrined in Article 21 of the Constitution, fundamental in nature, sacred, precious and inviolable; and after observing that the appellant had a right to take steps in self-preservation, the Hon’ble Court said,- ‘12…….He did not have to stand in queue before the Medical Board, the manning and assembling of which, barefacedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternative hospital as per policy. When the State itself has brought Escorts on the recognized list, it is futile for it to contend that the appellant could in no event have gone to Escorts and his claim cannot on that basis be allowed, on suppositions.” In Mohinder Singh Chawala (supra), such kind of cases were before the Hon’ble Supreme Court wherein the facility of the requisite treatment was not available in the State Hospitals of Punjab and under prior or ex facto permission of the Medical Board the employees had had their treatment in other Hospitals. However, while granting reimbursement for the actual expenses incurred, the bills for room rent paid to the Hospitals were rejected as inadmissible. The writ petitions filed by the employees succeeded before the High Court