- 1 - S.B.CIVIL WRIT PETITION NO. 5033/2004 (Jalam Singh vs. State of Raj.) DATE OF ORDER : 22/5/2008 HON’BLE JUSTICE GOPAL KRISHAN VYAS Mr. R.S.Saluja, for the petitioner. Mr.B.L.Tiwari, for the respondents. Reportable This writ petition has come up for hearing on application for early hearing filed by the petitioner. With the agreement of parties, the case is finally heard. In this case petitioner being a Government employee working on the post of Constable in RAC claiming medical reimbursement of expenses incurred on treatment taken by him at Sanjay Gandhi Post Graduate Institute, Lucknow, which is illegally denied by the respondents. As per the facts narrated in the writ petition, petitioner is working substantively as Constable in RAC and due to severe pain in stomach he was admitted to Mahatma Gandhi Hospital, Jodhpur on 25/2/2002. He was discharged from Mahatma Gandhi Hospital, Jodhpur on 2/4/2002 and referred to SMS Hospital, Jaipur for treatment of his disease IVB (Inferior Vena Cava Block). In pursuance of reference made by Medical Board, Jodhpur, he was admitted to SMS Hospital, Jaipur on 3/4/2002 for treatment of above disease. However, petitioner was discharged from SMS Hospital, Jaipur and - 2 - Lecturer, Medicine Department made a note of reference of petitioner for further treatment at Sanjay Gandhi Post Graduate Institute, Lucknow, which is evident from the discharge ticket Annex.5. In pursuance of reference, petitioner made all his efforts to get reference through Medical Board of SMS Hospital, Jaipur and for that purpose, as per petitioner, he approached the office of Principal, SMS Hospital, Jaipur but it was informed that Principal is on leave, therefore, in emergent situation, as per reference made by Lecturer in Medicine, petitioner went Lucknow for treatment where petitioner was treated. As per petitioner, he incurred expenses of Rs.2,58,132/- for the treatment of his disease at Sanjay Gandhi Post Graduate Institute, Lucknow and for reimbursement of said amount a claim was made before the respondents but his claim was rejected vide communication dated 28/11/2002 (Annex.15) on the ground that as per Rules of 1970 his case was to be referred by the Medical Board of SMS Hospital, Jaipur for want of reference by the Board the claim of petitioner for reimbursement of medical expenses has been denied by the respondents. It is further submitted by the petitioner that Rs.10000/- which was paid as advance from welfare fund was also ordered to be recovered from him. In these circumstances, petitioner has preferred this writ petition for direction to the State to reimburse the medical expenses incurred at Lucknow. - 3 - It is submitted by learned counsel for the petitioner that although the case of petitioner was referred by Lecturer in Medicine, SMS Hospital, Jaipur for further treatment at Sanjay Gandhi Post Graduate Institute, Lucknow but for want of reference by the Medical Board, petitioner’s claim has been denied by the respondents, which is totally illegal arbitrary and because due to emergent situation it was necessary for the petitioner to immediately get treatment at Lucknow and before leaving Jaipur he made all his efforts to get reference by the Board but due to non-availability of Principal his matter was not referred by the medical board, therefore, on technical ground respondents are not making payment of medical expenses incurred for treatment of the petitioner, which is totally arbitrary and illegal. Further, it is prayed by the petitioner that respondents are not disputing the fact that petitioner was treated at Sanjay Gandhi Post Graduate Institute, Lucknow but only on the ground that as per Medical Reimbursement Rules the matter was required to be referred by the Board at SMS Hospital, Jaipur and his case was not referred by the Board, therefore, he has not been held entitled for reimbursement of expenses in view of Rule 7(1) of the Rules of 1970. As per petitioner, he is a low paid employee and huge amount of Rs.2,58,132/- had been incurred on his treatment, so also advance of Rs.10000/-was also ordered to be - 4 - recovered from his salary, therefore, denial of medical reimbursement on technical ground is not sustainable before eye of law, so also respondents are required to follow the principle of natural justice for granting the said medical relief to the government employee working under their control, therefore, petitioner is seeking direction to the respondents for reimbursement of expenses incurred by him on his treatment at Lucknow. Per contra, Shri B.L.Tiwari submitted that the claim of petitioner is to be dealt with in accordance with Reimbursement Rules and under Rule 7(1) of the said Rules it is mandatory that there must be a reference by the medical board and in this case admittedly the case of petitioner was not referred by medical board, therefore, petitioner is not entitled for reimbursement of medical bills. In this connection, learned Government Counsel has submitted that in para no.4 of the petition it is specifically stated that for treatment at Sanjay Gandhi Post Graduate Institute, Lucknow the matter was not referred by the Principal, SMS Hospital, Jaipur, therefore, petitioner is not entitled for any medical reimbursement as per Rules. I have considered the rival submissions of the parties. In this case, admittedly, petitioner was admitted to Mahatma Gandhi Hospital, Jodhpur and he was referred by the medical board at Jodhpur to SMS Hospital, Jaipur. It is also evident - 5 - from the discharge ticket issued by Lecturer, Medicine, SMS Hospital, Jaipur that for further treatment petitioner is required to visit Sanjay Gandhi Post Graduate Institute, Lucknow and this fact is not disputed by the respondents but only on the technical ground that case of petitioner was not referred by the Principal or Assistant Principal or by the Medical Board of SMS Hospital, Jaipur, the medical reimbursement has been denied. The contention of petitioner mentioned in para no.4 of the petition that he made his all efforts for getting reference and he approached the office of Principal, SMS Hospital, Jaipur but he was informed that Principal is on leave, therefore, in emergent situation he went to Lucknow for further treatment without any reference by the Principal, SMS Hospital, Jaipur or by the medical board is not disputed by the respondents. Meaning thereby, due to non-availability of Principal the case of petitioner was not referred, although the Doctor who was treating petitioner at SMS Hospital, Jaipur was of the opinion that for further treatment petitioner is required to approach Sanjay Gandhi Post Graduate Institute, Lucknow, therefore, in my opinion, on a very hyper technical ground the claim of medical reimbursement has been denied by the respondents. It is also not disputed that petitioner availed medical treatment in the hospital which is notified in the Rules. Therefore, in my opinion, denial of medical reimbursement on the ground that matter was not referred by the Principal, - 6 - Assistant Principal or Medical Board of SMS Hospital, Jaipur is not sustainable before the law because before leaving Jaipur petitioner made his all efforts to get reference from the Medical Board. In these circumstances, in my considered opinion, the petitioner has been denied reimbursement of medical expenses incurred on his treatment at Lucknow on wrong premises. In case of Anil Kumar Surolia Vs. State of Raj. Reported in 2005 (6) RDD 2029, Hon'ble Division Bench of this Court has held that in emergent situation, employee can avail medical treatment outside Rajasthan. Paras 6 and 8 of the aforesaid judgment are 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 - 7 - 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 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 - 8 - recommendations made by this Court. Registrar General of this Court indeed supported 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 State of Rajasthan & Ors. vs. Thomas T. (D.B.Civil Special Appeal (W) No.874/2006), decided on 12/12/2006, the Division Bench of this court has observed as under: - 9 - “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 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 - 10 - restricted to such amount, which for like treatment is to be incurred if the treatment were to be taken at AIIMS. 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 - 11 - reimbursement of medical expenses altogether 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 the above discussion, this writ petition is allowed and respondents are directed to reimburse the medical expenses incurred on the treatment of petitioner in accordance with law within a period of three months from the date of receipt of certified copy of this order. (GOPAL KRISHAN VYAS), J. pankaj baweja