1 S.B.CIVIL WRIT PETITION NO.2265/2003 LRs. of Late Shri Shankar Dan versus State of Rajasthan & Ors. DATE OF ORDER :: 6th February, 2007 HON'BLE MR.JUSTICE GOVIND MATHUR Ms. Pramila Acharya, for the petitioners. Mr. B.L.Tiwari, Dy.G.A. for Mr.K.L.Thakur, Additional Advocate General. .... REPORTABLE The petitioners, legal representatives of a retired Government Servant Shri Shankar Dan, claimed for reimbursement of the total hospital expenditure incurred in treatment of Late Shri Shankar Dan at Bombay Hospital, Mumbai. The claim aforesaid is having factual foundation as follows:- A competent medical board on 18.7.2000 advised Late Shri Shankar Dan to undergo coronary artery bypass surgery and for that referred him to a centre having facility to undertake such treatment. Shri Shankar Dan accordingly reported at Bombay Hospital, Mumbai on 22.7.2000 and was admitted for elective coronary artery bypass surgery but that could not be undertaken due to advance stage of pancreatic malignancy and diabetes mellitus suffered by him. Shri 2 Shankar Dan was discharged from Bombay Hospital, Mumbai on 3.8.2000 with advised treatment under restricted activity, however, he incurred a sum of Rs.42305.00 in availing treatment there and that was claimed for reimbursement by him in accordance with the Rajasthan Civil Service (Medical Attendance) Rules, 1970 (hereinafter referred to as “the Rules of 1970”). Unfortunately, Shri Shankar Dan died on 9.4.2001, hence his wife Smt. Padam Kanwar pressed for getting the medical expenses reimbursed. The Treasury Officer (Rural), Jodhpur on 11.6.2002 allowed for reimbursement of a sum of Rs.12540.68 against the claim of Rs.42305.00. The amount aforesaid was determined as 80% of the expenses incurred in purchase of medicines and undergoing tests for diagnosis of the disease. No claim for other hospital charges was entertained by the respondents, hence this petition for writ is preferred. The contention of counsel for the petitioners is that Shri Shankar Dan being a retired government servant was entitled to financial assistance @ 80% of the hospital expenditure in light of the provisions of the Rules of 1970 read with the Rajasthan State Pensioners Medical Concession Scheme (hereinafter referred to as “the Scheme”). It is asserted that in view of the provisions of Rule 11 of the Rules of 1970 3 read with clauses 4-A and 4-E of the Scheme the respondents should have reimbursed 80% of the total hospital expenditure including the boarding charges. Per contra, according to the respondents the Rules of 1970 are having no application in the controversy as Shri Shankar Dan was a retired government servant. It is further said that in light of the provisions of clause 4-G of the Scheme the entitlement for financial assistance was only to the extent of 80% of the cost of medicines and 60% of the expenditure incurred on tests for diagnosis of disease. According to the respondents Shri Shankar Dan was not entitled for getting any financial assistance against the charges for doctors visit and stay in a private nursing home. Heard counsel for the parties. At the threshold it is required to be made clear that sub-rule(iv) of Rule 2 read with Rule 11 of the Rules of 1970 makes the application of the Rules of 1970 for retired government servants and the scheme is only a charter to execute financial assistance to the retired government servants in accordance with the provisions of the Rules of 1970, as such the stand of the respondents that the Rules of 1970 are having no application on retired government servants, is absolutely misconceived. 4 In the instant matter it is not in dispute that Late Shri Shankar Dan was advised by a competent medical board to undergo coronary artery bypass surgery at a centre having such facility. Shri Shankar Dan under the recommendation and on being referred by the medical board was admitted in Bombay Hospital, Mumbai and undertook necessary treatment except the coronary artery bypass surgery due to his suffering from pancreatic malignancy and diabetes mellitus. It is also the position admitted that Late Shri Shankar Dan remained an indoor patient under treatment at Bombay Hospital, Mumbai from 22.7.2000 to 3.8.2000 and for that he made a payment of Rs.42305.00 against the hospital charges including the expenses on medicines and tests. The respondents for the reason that Late Shri Shankar Dan was not subjected to coronary artery bypass surgery considered his case for financial assistance as per clause 4-G of the Scheme that prescribes that the treatment of disease other than the heart ailment in recognised hospital outside the State is limited to the expenditure likely in general wards of All India Institute of Medical Science, New Delhi and the pensioner shall be allowed 80% of the cost of medicines and 60% of the expenditure incurred on tests. The respondents while dealing with the case of Late Shri Shankar Dan for grant of financial assistance under the Rules of 1970 read with the 5 Scheme failed to appreciate that a competent medical board recommended and referred for treatment of cardiac ailment by undergoing coronary artery bypass surgery. Late Shri Shankar Dan only under the recommendation and reference made by the medical board got himself admitted at Bombay Hospital, Mumbai. The experts at Bombay Hospital, Mumbai also found artery of Late Shri Shankar Dan blocked but refused to undertake bypass surgery because of suffering of the patient by pancreatic malignancy and diabetes mellitus. Shri Shankar Dan in the factual background above was admitted at Bombay Hospital, Mumbai only for the treatment of heart ailment, as such his case was required to be treated as per clause 4-E of the Scheme that pertains to grant of financial assistance for treatment of heart ailment. Beside the above, it is also pertinent to note that Shri Shankar Dan was referred to a hospital outside the State of Rajasthan under the recommendations of a competent medical board and, therefore, even if it is assumed that he was not suffering from heart ailment then too his case was required to be considered in accordance with clause 4- A of the Scheme that prescribes for financial assistance @ 80% of the hospital expenditure. Though the term “hospital expenditure” is not interpreted under the Rules of 1970 as well as under the Scheme but in general it includes expenditure towards medicines, diagnosis tests, stay at hospital/nursing home and other ancillary expenditure. The respondents, 6 therefore, were required to provide financial assistance to Late Shri Shankar Dan in a tune of 80% of the total hospital expenditure. Before parting with the matter I also consider it appropriate to refer that the right to health is an integral to right of life and, therefore, as laid down by Hon'ble Supreme Court in the case of State of Punjab & Ors. v. Mohinder Singh Chawla & Ors. [(1997)2 SCC 83], if the government servant is suffered an ailment that requires treatment at specialised approved hospital and on reference the government servant has undergone such treatment at a specific hospital, the State should bear all expenditure incurred by the government servant including the expenses incurred towards room rent during stay in the hospital as an indoor patient. The law enunciated by Hon'ble Supreme Court can very well be applied to the retired government servants also as they too served the State during best part of their life. In view of whatever discussed above, this petition for writ deserves acceptance, the same, therefore, is allowed, Late Shri Shankar Dan is declared entitled for getting financial assistance in terms of clauses 4-A and 4-E of the Scheme. The amount aforesaid is now required to be paid to the legal representatives (petitioners) of Late Shri Shankar Dan 7 by adjusting the sum of Rs.12540.68 that has already been paid to them by the respondents. No order to costs. ( GOVIND MATHUR ),J. kkm/ps.