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2004 DIGILAW 1794 (RAJ)

Tulsa Ram v. State of Rajasthan

2004-12-15

SUNIL KUMAR GARG

body2004
Judgment Sunil Kumar Garg, J.-This writ petition under Article 226 of the Constitution of India has been filed by the petitioner against the respondents on 06.07.2004 with the prayer that by an appropriate writ, order or direction, the respondents be directed to reimburse to the petitioner the amount of medical expenses and travelling expenses which he has actually incurred for getting treatment a Bombay Hospital, Bombay. 2. The case of the petitioner as put forward by him in this writ petition is as follows: The petitioner was suffering with the disease known as Cystic Lesion Inedulla Oblongata (a case of neuro surgery) and even after giving long treatment by the doctors of Dr. S.N. Medical College, Jodhpur, the disease of the petitioner could not be cured and since the petitioner could not be operated for the same at Jodhpur, therefore, in these circumstances, for further treatment and operation, he was advised to go out where such treatment was possible. The Principal and Controller, Dr. S.N. Medical College, Jodhpur vide order dated 28.03.2003 (Annex. 1) constituted a Board for referring the petitioner for further treatment outside Jodhpur. After due examination, the Board vide letter dated 29.03.2003 (Annex. 2) informed the Principal and Controller, Dr. S.N. Medical College Jodhpur that the petitioner was referred to All India Institute of Medical Sciences, Delhi (for short "AIIMS") (Department of Neuro Surgery) for further treatment for the reason that this facility was not available at Jodhpur and even in the State. The Board also recommended that the petitioner would require two attendants to accompany him. Accordingly, through order dated 01.04.2003 (Annex. 3), the Principal and Controller, Dr. S.N, Medical College, Jodhpur referred the petitioner to AIIMS, New Delhi with one attendant. The further case of the petitioner is that his disease was serious one and required immediate surgery. The petitioner enquired at AIIMS about the waiting list and the period likely to be consumed in getting his turn for surgery. He came to know that at AIIMS, the waiting list was quite lengthy and his surgery may take place after quite long time and in that event there was every risk to his life. In such compelling circumstances, the petitioner had to get himself operated at Bombay. Accordingly, the petitioner submitted an application (Annex. He came to know that at AIIMS, the waiting list was quite lengthy and his surgery may take place after quite long time and in that event there was every risk to his life. In such compelling circumstances, the petitioner had to get himself operated at Bombay. Accordingly, the petitioner submitted an application (Annex. 4) dated 02.04.2003 to the Assistant Director, Prosecution, Jodhpur (respondent No. 4) informing him that he would be leaving Jodhpur for Bombay for his surgery in Bombay Hospital, Bombay and he also informed that he would submit the leave application after returning therefrom and he also requested for grant of permission to leave headquarter and sanction of medical leave. The further case of the petitioner is that he went to Bombay where he was got admitted in Bombay Hospital on 06.04.2003. Thereafter, he was operated there and he was discharged on 17.04.2003 and he was asked to stay at Bombay after 17.04.2003 for observation. When the condition of the petitioner could not be improved, he was again got admitted in Bombay Hospital, Bombay on 19.04.2003 and he was discharged on 26.04.2004. The further case of the petitioner is that after having operated at Bombay Hospital, Bombay, he came to Jodhpur and on 01.08.2003, he submitted an application (Annex. 5) to the Asstt. Director, Prosecution, Jodhpur (respondent No. 4) stating that he had been operated at Bombay Hospital, Bombay instead of AIIMS, New Delhi because at AIIMS, New Delhi, there was a long waiting list and operation may take time and he prayed for reimbursement of the amount incurred by him for getting operated at Bombay Hospital, Bombay. The further case of the petitioner is that thereafter, the respondent No. 4 Asstt. Director, Prosecution, Jodhpur vide letter dated 05.08.2003 (Annex.6) asked the petitioner to submit his claim and upon this, the petitioner submitted his claim on aforesaid letter Annex. 6 on 21.08.2003 for total sum of Rs. 1,19,118.14 which includes Rs. 1,15,919.50 towards medial expenses and Rs. 3,198.64 towards travelling expenses. Thereafter, the respondent No. 4 Asstt. Director, Prosecution, Jodhpur vide letter dated 28.08.2003 (Annex. 7) asked the Superintendent, AIIMS, New Delhi to inform as to what would be the expenses in case the petitioner had been operated at AIIMS, New Delhi for the alleged disease. A copy of the said letter Annex. 3,198.64 towards travelling expenses. Thereafter, the respondent No. 4 Asstt. Director, Prosecution, Jodhpur vide letter dated 28.08.2003 (Annex. 7) asked the Superintendent, AIIMS, New Delhi to inform as to what would be the expenses in case the petitioner had been operated at AIIMS, New Delhi for the alleged disease. A copy of the said letter Annex. 7 dated 28.08.2003 was also endorsed to the petitioner with the direction that the bills may be got signed from the Medical Officer and the same be submitted with necessary certificates. In reply to the said letter Annex.7 dated 28.08.2003, the petitioner wrote a letter Annex. 8 dated 110.2003 to the respondent No. 4 Asstt Director, Prosecution, Jodhpur making it clear that he got operated himself at Bombay because at AIIMS, New Delhi, there was a long waiting list and his operation would have come in turn after about 2-3 months and looking to his disease he could not wait for such a long time. The further case of the petitioner is that thereafter, the respondent No.4 Asstt. Director, Prosecution, Jodhpur vide letter dated 20.10.2003 (Annex. 9) forwarded the case of the petitioner to the respondent No. 3 Director, Prosecution, Jaipur for necessary sanction and reimbursement of the amount of the medical expenses incurred by the petitioner for his operation at Bombay Hospital, Bombay, The further case of the petitioner is that thereafter, the office of the Director, Prosecution, Jaipur (respondent No. 3) vide letter dated 11.2003 (Annex. 10) asked the respondent No. 4 Asstt. Director, Prosecution, Jodhpur to send original bills and vouchers for further action and upon this, the respondent No. 4 Asstt. Director, Prosecution, Jodhpur vide letter dated 111.2003 (Annex. 11) sent the original bills and vouchers to the respondent No. 3 Director, Prosecution, Jaipur. Thereafter, office of the Director, Prosecution, Jaipur (respondent No. 3) wrote a letter Annex. 12 dated 03.01.2004 to the Principal, Medical College, Jaipur wherein it was requested that actual amount which could be reimbursed to the petitioner may be made clear and alongwith that letter Annex. 12, original bills and vouchers of the petitioner were also sent. The office of the Director, Prosecution, Jaipur (respondent No. 3) also wrote a letter Annex. 13 dated 03.01.2004 to the respondent No. 4 Asstt. 12, original bills and vouchers of the petitioner were also sent. The office of the Director, Prosecution, Jaipur (respondent No. 3) also wrote a letter Annex. 13 dated 03.01.2004 to the respondent No. 4 Asstt. Director, Prosecution, Jodhpur informing that the petitioner could not be reimbursed traveling expenses for journey to Bombay because he went to Bombay at his own choice and no proof was submitted regarding long waiting list at Delhi. A copy of the said letter Annex. 13 03.01.2004 was also endorsed to the petitioner and on receipt of that letter Annex. 13 the petitioner submitted a detailed reply to the respondent No. 3 Director, Prosecution, Jaipur on 09.01.2004, a copy of which is marked as Annex. 14 Thereafter, the petitioner received an order dated 03.03.2004 (Annex. 15) passed by the respondent No. 3 Director, Prosecution, Jaipur by which the petitioner was granted only Rs. 25,000/-as against his total claim for Rs. 1,15,919.50 towards medical expenses. The further case of the petitioner is that denial of actual medical expenses incurred by the petitioner for operation at Bombay Hospital, Bombay was wholly arbitrary and illegal and thus, he served a notice for demand of justice dated 15.03.2004 (Annex. 16) upon the respondents through Counsel requesting them that in view of the settled proposition of law, the petitioner may be sanctioned reimbursement of actual medical and travelling expenses which he had incurred for his operation at Bombay Hospital, Bombay. In reply to the said notice for demand of justice Annex.16, the respondent through letter Annex.17 dated 22.04.2004 informed that the case of the petitioner was being considered sympathetically. However, nothing has been done so far. Hence, this writ petition with the prayer as stated above. In this petition, the following submissions have been made by the petitioner:- (i) That no doubt the petitioner was referred for his treatment a AIIMS, New Delhi, but since there was a long waiting list at New Delhi which may take considerably long time in his turn for operation and looking to the nature of disease, it was not possible for the petitioner to wait for such a long time else something untoward might happen, in such circumstances, the petitioner thought it proper to get himself operated at Bombay Hospital, Bombay so that he may be cured within time. Therefore, whatever was done by the petitioner that was done in the interest of his health and nothing else. In these circumstances, the petitioner should have not been denied reimbursement of actual medical expenses incurred by him for his operation at Bombay Hospital, Bombay, (ii) That it was not a case where the petitioner had proceeded to Bombay without information and it was also not a case where the Bombay Hospital, Bombay is not included in Appendix-11 of the Rajasthan Civil Services (Medical Attendance) Rules, 1970 (hereinafter referred to as "the Rules of 1970") and it was also not a case where the bills were not found genuine one and in such circumstances, when the Bombay Hospital, Bombay was also recognized as per the Rules of 1970 and it was expedient to get operated immediately and when prior information had been sent by the petitioner, therefore, the respondents ought to have sanctioned the reimbursement of the medical expenses incurred by the petitioner for operation at Bombay Hospital, Bombay and denial of reimbursement of medical expenses is wholly arbitrary, illegal and violative of Articles 14 and 21 of the Constitution of India. A reply to the writ petition was filed by the respondents and their case is that the Board, which was constituted by the Principal and Controller, Dr. S.N. Medical College, Jodhpur had submitted a false report in respect of the treatment of the disease by referring the petitioner to go out of state as the another Board, which was constituted by SMS Medical College and Hospitals, had opined that treatment of the disease, with which the petitioner was suffering, was available in SMS Hospital, Jaipur and, therefore, the petitioner could have been operated at Jaipur and estimated expenses for that treatment would have been Rs. 25,000/-It has been further submitted by the respondents that no doubt the petitioner was referred for treatment in AIIMS, New Delhi, but he had not submitted the proof relating to long waiting list at AIIMS, New Delhi and further, on the basis of the advice given by the Medical Board at Jodhpur, the petitioner could have taken treatment at AIIMS, New Delhi at the most, but without permission of reference, the petitioner had taken treatment at Bombay Hospital, Bombay and, therefore, he was not entitled for reimbursement of the actual medical expenses incurred by him for operation at Bombay Hospital, Bombay. Hence, no interference is called for and writ petition deserves to be dismissed. 3. I have heard the learned Counsel for the petitioner and the learned Counsel for the respondents and gone through the materials available on record. 4. There is no dispute on the point that the petitioner was suffering with the disease known as Cystic Lesion Inedulla Oblongata. 5. There is also no dispute on the point that the Principal and Controller, Dr. S.N. Medical College, Jodhpur vide order dated 28.03.2003 (Annex. 1) Constituted a Board for referring the petitioner for further treatment outside Jodhpur. 6. There is also no dispute on the point that the Board vide letter dated 29.03.2003 (Annex. 2) informed the Principal and Controller, Dr. S.N. Medical College, Jodhpur that the petitioner was referred to AIIMS, New Delhi for further treatment for the reason that this facility was not available at Jodhpur and even in the State. The Board also recommended that the petitioner would require two attendants to accompany him. 7. There is also no dispute on the point that through order dated 01.04.2003 (Annex. 3) the Principal and Controller, Dr. S.N. Medical College, Jodhpur referred the petitioner to AIIMS, New Delhi with one attendant, 8. There is also no dispute on the point that the petitioner did not get treatment at AIIMS, New Delhi though recommended, as according to him, there was long waiting list for the surgery, which was needed by the petitioner, at AIIMS, New Delhi. 9. There is also no dispute on the point that instead of taking treatment at AIIMS, New Delhi, the petitioner himself , after informing the respondent No. 4 Asstt. Director, Prosecution, Jodhpur through letter Annex. 4 dated 02.04.2003, went to Bombay, where he was got admitted on 06.04.2003 and operated and he was discharge on 17.04.2003. 10. There is also no dispute on the point that after having operated at Bombay Hospital, Bombay, the petitioner submitted an application dated 01.08.2003 (Annex. 5) to the Asstt. Director, Prosecution, Jodhpur (Respondent No. 4) sating that he had been operated at Bombay Hospital, Bombay instead of AIIMS, New Delhi because at AIIMS, New Delhi, there was a long waiting list and operation may take time and he prayed for reimbursement of the amount incurred by him for getting operated at Bombay Hospital, Bombay. 11. 5) to the Asstt. Director, Prosecution, Jodhpur (Respondent No. 4) sating that he had been operated at Bombay Hospital, Bombay instead of AIIMS, New Delhi because at AIIMS, New Delhi, there was a long waiting list and operation may take time and he prayed for reimbursement of the amount incurred by him for getting operated at Bombay Hospital, Bombay. 11. There is also no dispute on the point that thereafter, the respondent No. 4 Asstt.. Director, Prosecution, Jodhpur vide letter dated 05.08.2003 (Annex. 6) asked the petitioner to submit his claim and upon this, the petitioner submitted his claim on aforesaid letter Annex. 6 on 21.08.2003 for total sum of Rs. 1,19,118.14 which includes Rs. 1,15,919.50 towards medical expenses and Rs. 3,198.64 towards traveling expenses. 12. There is also no dispute on the point that the respondent No. 4 Asstt. Director, Prosecution, Jodhpur vide letter dated 20.10.2003 (Annex. 9) forwarded the case of the petitioner to the respondent No. 3, Director, Prosecution, Jaipur for necessary sanction and reimbursement of the amount of medical expenses incurred by the petitioner for his operation at Bombay Hospital, Bombay. 13. There is also no dispute on the point that through letter Annex. 13 dated 03.01.2004, the Director, Prosecution, Jaipur (Respondent No. 3) informed the petitioner that he could not be reimbursed travelling expenses for journey to Bombay because he went to Bombay at his own choice and no proof was submitted regarding long waiting list at Delhi. 14. There is also no dispute on the point that after examining the case of the petitioner, the respondent No. 3 Director, Prosecution, Jaipur through order dated 03.03.2004 (Annex. 15) came to the conclusion that the petitioner was only entitled to get Rs. 25,000/-in lump sum as if the petitioner would have taken treatment at SMS Hospital, Jaipur, the expenses would have been nearabout Rs. 25,000/- 15. There is also no dispute on the point that the petitioner himself went to Bombay for treatment at Bombay Hospital, Bombay and for that, he had no permission of the State Government and he was having permission for treatment at AIIMS, New Delhi. 16. The question for consideration is whether in the facts and circumstances just narrated above, the expenses incurred by the petitioner for his operation at Bombay Hospital, Bombay may be reimbursed to him or not. 17. 16. The question for consideration is whether in the facts and circumstances just narrated above, the expenses incurred by the petitioner for his operation at Bombay Hospital, Bombay may be reimbursed to him or not. 17. Before proceeding further, it may be stated here that Rule 7 of the Rules of 1970 provides for treatment of a disease for which treatment is not available in the State and for convenience, Sub-rule (3) of Rule7 of the Rules of 1970 is quoted here:- "Rule 7. Treatment of a disease for which treatment is not available in the State.- (1). . . . . . .(2) ..... (3) Thefacility 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. Appendix-11 appended to the Rules of 1970 is quoted here "The following Hospitals/Institutions outside the State are recognized for the purpose of Rule 7 (3) of these rules:- .(1) All India Institute of Medical Science, New Delhi. .(2) Tata Memorial Hospital, Bombay. .(3) Christian Medical College Hospital, Vallore. .(4) Cancer Institute, Madras. .(5) Irwin Hospital, New Delhi. .(6) Lady Hardinge Medical College Hospital, New Delhi (for women and children) .(7) J.J. Hospital, Bombay. .(8) Jas Lok Hospital, Bombay. .(9) Gujarat State Cancer & Research Institute (M.P. Shah Cancer Hospital), Ahmedabad. .(10) Post Graduate Institute & Medical Education Research, Centre Chandigarh. .(11) Bombay Hospital, Bombay." 18. Thus, there is no dispute on the point that even Bombay Hospital, Bombay is also recognized by the State Government for treatment outside the State in the same manner as AIIMS, New Delhi has been recognized. 19. The Honble Supreme Court in Surjit Singh vs. State of Punjab, AIR 1996 SC 1388 , has observed as follows:-"It is otherwise important to bear in mind that self preservation of ones life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self -preservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this Great Land conceived of such right had recongnized it. The importance and validity of the duty and right to self -preservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this Great Land conceived of such right had recongnized it. Attention can usefully be drawn to verses 17, 18, 20 in Chapter 16 of the Garuda Purana (A dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine....." 20. Thus, from the above observations of the Honble Supreme Court, it is clear that right to preserve health and obtain necessary medical aid in furtherance of self -preservation is part of right to life. .21. A Division Bench of this Court in Shankerlal vs. State of Rajasthan & Ors., 2000 (3) WLC 585 (Raj.), after considering various authorities came to the following conclusions in respect of medical reimbursement:- .(i) That Escort Heart Institute and Research Centre, New Delhi has been recognized as a referral Hospital for treatment of Heart ailment of Government servants including members of their families outside the State of Rajasthan and the name of this institution was inserted vide FD office Memorandum No. F.12 (12) Fd (Gr.2)/82 dated 24.08.1989 by inserting entry No. (viii) under heading (d) "complicated heart surgery cases" as the last para of Finance Department Memorandum No. 12(1)FD (Gr.2)/89 dated 21.02.1989 .(ii) That the plea that because the petitioner appellant has not obtained a certificate before availing the benefit of treatment in an approved Hospital outside the State of Rajasthan under Rule 7(1) of the Rules, he is not entitled to any reimbursement cannot be sustained in the very nature of the facts and circumstances of the present case where it was physically impossible for the petitioner appellant to have obtained a certificate from any authority at Delhi that such facility is not available within the State of Rajasthan. .(iii) That if two Institutions/Hospitals at one station have been identified as having facility of specialized treatment, to which reference can be made for medical attendance and treatment of Government servant posted within the State of Rajasthan or to any member of his family for treatment of such disease and the Government servant or any member of his family while spending time outside State at such place in the contingency mentioned under Rule 6 suffers from such disease, he is entitled to avail treatment at either of the two institutions which are recognized for such specialized treatment. In such circumstances, it is not required that he should secure a certificate of non-availability of such treatments at any Government Hospital in Rajasthan nor such a plea can be entertained that for availing treatment at any one of such institution at the same station, he has to avail a certificate or non-availability of treatment of any Government hospital of that place. .(iv) That it would be strange proposition to accept that the petitioner ought to have obtained a certificate from All India Institute of Medical Sciences, New Delhi which itself is a recognized institution outside State for being referred to another approved Institution viz. Escort Heart & Research Institute, New Delhi for specialized treatment in Heart Surgery case that facility is not available at All India Institute of Medical Sciences, New Delhi and he should avail such a facility of treatment at Escort Heart and Research Institute, New Delhi. .(v) That we cannot loose sight of factual situation in the AIIMS New Delhi i.e., with respect of the number of patients received there for heart problems. In such an urgency one cannot sit at home and think in a cool and calm atmosphere for getting medical treatment at a particular hospital or wait for admission in some Government medical institution. In such a situation, decision has to be taken forthwith by the person or his attendants if precious life has to be saved. .(vi) That the claim could not be denied on the ground that because the petitioner instead of waiting in queue and spending time in seeking a clarification from a local hospital has decided to act with promptitude in the interest of self preservation by taking his wife immediately to an institute approved by the State Government. 22. .(vi) That the claim could not be denied on the ground that because the petitioner instead of waiting in queue and spending time in seeking a clarification from a local hospital has decided to act with promptitude in the interest of self preservation by taking his wife immediately to an institute approved by the State Government. 22. Apart from this, there are decisions of this Court in Khuman Singh Mehta vs. State of Rajasthan & Ors., 1996 WLC (UC) 61, Shyam Singh vs. State of Rajasthan & Ors. 1996 (2) WLC 441, Smt. Harbir Kaur vs. State of Rajasthan & Ors., 2004 (3) RLR 594, Chain Singh Panwar vs. State of Rajasthan & Ors., D.B. Civil Writ Petition No. 889/2001 decided on 12.05.2003 and Shanker Lal Mathur (Dr.) vs. State of Rajasthan (2003 (3) DNJ 1096 (Raj.), where this Court issued directions to reimburse the medical expenses incurred for securing medical treatment for special diseases outside Rajasthan in like circumstances for the reason that there was no facility of treatment of the disease from which the petitioner was suffering, in the State of Rajasthan. 23. In the present case, since Bombay Hospital, Bombay is a referral hospital recognized by the State of Rajasthan for treatment by the Government servants, therefore, there was no reason for declining the claim of the petitioner for medical expenses incurred by him for operation at Bombay Hospital, Bombay. 24. Apart from this case, the case of the respondents that the report submitted by the Medical Board, which was constituted by the Principal and Controller, Dr. S.N. Medical College, Jodhpur, was false one, cannot be accepted at all because no such proof has been produced by the respondents to prove that plea. It is strange that before verifying the facts, the respondents had taken such plea. 25. Since, the petitioner was referred by the Medical Board for treatment and surgery at AIIMS, New Delhi and instead, he had himself got operated at Bombay Hospital, Bombay, therefore, when Bombay Hospital, Bombay is recognized by the State of Rajasthan, denial of medical expenses as well as travelling expenses incurred by the petitioner for getting treatment and operation at Bombay Hospital, Bombay is clearly arbitrary, unreasonable and unjust exercise on the part of the respondents. If the petitioner, on the basis of waiting list at AIIMS, New Delhi, had got himself treated and operated at Bombay Hospital, Bombay instead of AIIMS, New Delhi, it cannot be said that for that ground, the petitioner should be denied medical and travelling expenses incurred by him for operation at Bombay Hospital, Bombay, especially when Bombay Hospital, Bombay is recognized by the State of Rajasthan and that point has been discussed by the Division Bench of this Court in the case of Shankerlal (Supra), in point No. (vi) as already quoted above. Had Bombay Hospital, Bombay would have not been recognized by the State Government and would not have been found in the Appendix 11 appended to the Rules of 1970, the position would have been different one. 26. For the reasons stated above, it is held that the petitioner is entitled to claim reimbursement of amount of medical and travelling expenses incurred by him for operation at Bombay Hospital, Bombay and thus, this writ petition deserves to be allowed. Accordingly, this writ petition filed by the petitioner is allowed and the respondents are directed to reimburse the medical and travelling expenses incurred by the petitioner for his operation and treatment at Bombay Hospital, Bombay within a period of three months from today. No order as to costs.