IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CWP Nos. 751 of 2005 and 749 of 2006 Date of decision: 26.08.2009 CWP No. 751 of 2005 N.C.Trehan …Petitioner Versus State of H.P and others. …Respondents. CWP No. 749 of 2006 State of H.P. …Petitioner Versus R.C.Katoch …Respondents. Coram The Hon’ble Mr.Justice Deepak Gupta, J. The Hon’ble Mr. Justice V.K.Ahuja, J. Whether approved for reporting?1 Yes. CWP No. 751 of 2005 For the petitioner: Mr. Surinder Sharma, Advocate. For the respondents: Mr. Ram Murti Bisht and Rajesh Mandhotra, Deputy Advocate General. CWP No. 749 of 2006 For the petitioners: Mr. Ram Murti Bisht and Rajesh Mandhotra, Deputy Advocate General. For the respondent: Mr. Ajay Mohan Goel, Advocate. Per Deepak Gupta, J. These two petitions are being decided by a common judgement since a common question of law is involved in both the cases. CWP No 751 of 2005 arises out of O.A. No. 2502 of 2003 filed by Shri N.C.Trehan before the learned Administrative Tribunal whereby he had prayed that as against the amount of Rs.1,96,600/- spent by him for undergoing heart surgery in Fortis Heart Institute, Mohali (Punjab) on 10th April, 2002, only a sum of Rs.94,000/- has been reimbursed. The petitioner was advised by 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes. 2 the Cardiologist , IGMC, Shimla to take treatment outside Himachal Pradesh on 26th March, 2002 since facility of such treatment was not available in Shimla. He was permitted to take treatment at Batra Hospital, New Delhi, which was a duly recognized hospital. According to the petitioner, while he was on his way to Delhi he suffered excessive discomfort and pain and got himself admitted in Fortis Heart Institute, Mohali. He claimed that since he had got his surgery conducted under emergency he was entitled to full reimbursement. The stand of the State is that as per the rules framed by the State the reimbursement of medical claims is limited to the amount payable at All India Institute of Medical Sciences, New Delhi and accordingly Rs.94,000/- only was sanctioned. The original application filed by the petitioner was rejected on the ground that Fortis Heart Institute, Mohali, was a private hospital not recognized by the State Government and therefore, the State was justified in restricting the claim to the amount payable in AIIMS. The Division Bench of the learned Tribunal rejected the original application on June 7, 2005 and held as follows:- “9. Above being the position, we are compelled to infer that notwithstanding the responsibility and bounden duty of the Government to provide complete health care and medical facilities to its employees as a welfare measure, a check and control of such expenditure from the State exchequer is imperative so the employees do not tend to misuse the facilities extended in relaxation of the normal rules by taking treatment in private run hospitals at will even in non-serious and non- deserving cases, there being always scope of maneuvering. 10. The Government, be it State or the Central Government in its endeavour to better health care not only to the employees but to the public in general have provided all sorts of medical facilities in Government run hospitals at numerous places but nevertheless in the 3 larger interest of upgraded health care and in emergent/serious cases as a measure of facility allows employees to take treatment from recognized private hospitals by imposing the ceiling on expenditure of such treatment at par with premier Government run hospitals of repute like AIIMS and PGI and the same must be viewed as valid for reasons of financial limitations and cannot be termed as violative of Articles 14 and 21 of the Constitution of India by any stretch of imagination.” CWP No. 749 of 2006 arises out of order passed by the learned Tribunal in O.A. No. (D) 198 of 1999 decided on 20.03.2006 by a learned Single Member of the Tribunal. In this case, the employee had undergone bye-pass heart surgery at Batra Hospital, New Delhi and incurred expenses of Rs.1,26,587/-. Since, such treatment was not available at Shimla he had got the treatment done at Delhi. An amount of Rs.86,587/- was released by sanctioning the amount payable at AIIMS. The grounds raised by both the parties are identical. Surprisingly, the learned Single Member who decided this matter after the Division Bench judgement, which he should have been aware of, directed the State to pay the extra amount incurred by the employee. The order of the Single Member in this case is totally contrary to the order of the Division Bench cited above. We are constrained to note that this shows lack of judicial discipline. The State has relied upon two judgements of the Supreme Court of India. The Apex Court in State of Punjab and others vs. Ram Lubhaya Bagga and Others, (1998) 4 SCC 117, dealt with this question in detail and held as follows:- “25. Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a Government hospital in Punjab. Question is whether the new policy which is restricted by the financial constraints of the State to the 4 rates in AIIMS would be in violation of Article 21 of the Constitution of India. So far as questioning the validity of governmental policy is concerned in our view it is not normally within the domain of any Court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional statutory or any other provision of law. When Government forms its policy, it is based on number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if Court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints. 26. When we speak about a right, it correlates to a duty upon another, individual, employer, Government or authority. In other words, the right of one is an obligation of another. Hence the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47, it is for the State to secure health to its citizen as its primary duty. No doubt Government is rendering this obligation by opening Government hospitals and health centres, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, or reduce the queue of waiting lists, and it has to provide all facilities for which an employee looks for at another hospital. Its up-keep; maintenance and cleanliness has to be beyond aspersion. To employ best of talents and tone up its administration to give effective contribution. Also bring in awareness in welfare of hospital staff for their dedicated service, give them periodical, medico-ethical and service oriented training, not only at the entry point but also during the whole tenure of their service. Since it is one of the most sacrosanct and valuable rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of this welfare State looks towards the State for it to perform its this obligation with top priority including by way of allocation of sufficient funds. This in turn will not only secure the right of its citizen to the best of their satisfaction but in turn will benefit the State in achieving its social, political and economical goal. For every return there has to be investment. Investment needs resources and finances. So even to protect this sacrosanct right finances are an inherent requirement. Harnessing such resources needs top priority. xxxx… xxx…. Xxx…… xxx.. 5 32. Any State endeavour for giving best possible health facility has direct co-relation with finances. Every State for discharging its obligation to provide some projects to its subject requires finances. Article 41 of the Constitution gives recognition to this aspect. Article 41 : Right to work, to education and to public assistance in certain cases : The State shall, within the limits of its economic capacity and development, make effective provisions for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.” It is obvious that the Apex Court held that the State is well within his right to restrict the amount to be reimbursed by framing appropriate rules and issuing appropriate executive directions in this behalf. A similar question came up before the Apex Court in State of Karnataka and another vs. R. Vivekananda Swamy, (2008) Vol. 5 SCC 328, wherein after following the judgement in State of Punjab’s case (supra) it held as follows:- “24. In view of the aforementioned settled principles of law there cannot be any doubt that the Rules regarding reimbursement of medical claim of an employee when he obtains treatment from a hospital of his choice can be made limited. Such Rules furthermore having been framed under the proviso to Article 309 of the Constitution of India constitute conditions of service in terms whereof on the one hand the employee would be granted the facility of medical aid free of cost from the recognized government hospitals and on the other he, at his option, may get himself treated from other recognized hospitals/institutions subject of course to the condition that the reimbursement by the State therefor would be limited.” From the aforesaid pronouncements of the Apex Court, it is apparent that the State has to frame a policy of medical reimbursement keeping in view the finances available with it. The State is not only under obligation to provide medical aid to its employees who may even otherwise be well paid but is also under 6 an obligation to ensure that proper medical aid is provided to all citizens including those who are unemployed or are serving in the unorganized sectors. The poor people of this country who work in rural areas or in the unorganized sectors do not have the benefit of any medical reimbursement. A balance has to be struck between the employees of the State and such persons. The employees of the State who are well paid cannot as a matter of right claim reimbursement for treatment taken in expensive hospitals which the other citizens of this country cannot even dream of entering. There are limited finances available with the State. On the one hand there is a need to provide medical reimbursement to the employees and on the other hand there is also an equally if not more important need to provide proper medical facilities and health care to all the citizens of the country. Every citizen looks forward to the State for proper medical aid. If all the funds are spent only on the employees there will be nothing left for the other citizens. The State is the best judge as to how to balance the equities and is entitled to restrict the amount of medical reimbursement payable to its employees. In the present case, the employees were given an option of going outside the State for medical treatment but they are clearly told that the amount which will be reimbursed will be equal to the amount payable at AIIMS, which is a Government hospital. The employees knowing these rules fully well decided to go outside the State and now they cannot claim that they should be reimbursed the amount spent in private hospitals. In view of the aforesaid discussion, it is apparent that the State is entitled to restrict the amount of medical reimbursement to 7 the amount payable at All India Institute of Medical Sciences, New Delhi. Therefore, Writ Petition No. 751 of 2005 filed by Er. N.C.Trehan is dismissed and the order of the learned Tribunal is confirmed and Writ Petition No. 749 of 2006 filed by the State is allowed and the order of the learned Tribunal is set-aside. No order as to costs. ( Deepak Gupta ), J. 26th August, 2009 ( V.K.Ahuja), J. ™