Research › Search › Judgment

Rajasthan High Court · body

2006 DIGILAW 1927 (RAJ)

State of Rajasthan v. Syed Manzoor Ali

2006-05-29

MOHAMMAD RAFIQ, S.N.JHA

body2006
Judgment S.N. Jha, CJ.-This special appeal is directed against the order of the learned Single Judge dated 04.08.2005 in S.B. Civil Writ Petition No. 2600/2002 allowing the writ petition of the respondent. The respondent had filed the writ petition seeking direction to reimburse the medical expenses incurred on treatment of his wife. The respondent is an ex-MLA and in terms of Section 4-A(2) of the Rajasthan Legislative Assembly (Officers and Members Emoluments and Pension) Act. 1956 (for short, the Act) enacted in terms of Articles 186 and 195 of the Constitution of India, he is entitled to reimbursement of medical expenses. 2. Before coming to the dispute involved, the facts in brief may be stated. In the first week of October, 2000 the wife of the respondent, Smt. Nasim Begum developed chest pain and she was taken to Dr. R.K. Madhok on 010.2000. After necessary tests, Dr. Madhok asked him to arrange money - deposit certain amount in the SMS Hospital, Jaipur and keep the rest ready as cost of the heart valves. As the respondent did not have enough money he did not immediately go in for surgery. After about eight months he took his wife again to hospital for examination. The doctors advised for immediate surgery. However, on account of reports alleging negligence, carelessness etc. of the staff of SMS hospital he decided to get his wife operated in a private hospital. The respondent referred to news items and also public interest litigations highlighting the mal-practices in the SMS hospital. The respondent got his wife admitted in Tongia Heart and General Hospital on 08.06.2001 where angiography was performed on 09.06.2001 and on 21.06.2001 valves were replaced in open heart surgery. She remained in the hospital upto 06.07.2001 as an indoor patient. She remained under post-operative care for further period of three months. On 06.09.2001 he applied for reimbursement of the medical expenses which was rejected on 26.09.2001. He made representations to the Secretary, Rajasthan Legislative Assembly and the Chief Minister but they met the same fate. To buttress his claim, apart from Section 4-A(2) of the Act, the respondent also referred to Rajasthan Legislative Assembly Members (Medical Facilities) Rules, 1964 and Rajasthan Civil Services (Medical Attendance) Rules, 1970. .3. He made representations to the Secretary, Rajasthan Legislative Assembly and the Chief Minister but they met the same fate. To buttress his claim, apart from Section 4-A(2) of the Act, the respondent also referred to Rajasthan Legislative Assembly Members (Medical Facilities) Rules, 1964 and Rajasthan Civil Services (Medical Attendance) Rules, 1970. .3. The appellants in their reply took the stand that the claim was not in accordance with Section 4-A(2) of the Act and the respondent was not entitled to reimbursement of medical expenses incurred .on treatment of his wife in the Tongia Heart and General Hospital which is a private hospital. In terms of the provisions of Section 4-A(2), the benefit is available only in the case of treatment as an indoor patient in any Government hospital in the State. .4. The learned Single Judge noted that the controversy was covered by decisions of this Court in the cases of Himmat Singh vs. State of Rajasthan & Ors., S.B. Civil Writ Petition No. 5703/2003, Dr. Vinay Kumar Sharma vs. State of Rajasthan, S.B. Civil Writ Petition No. 3669/2004, and Anil Kumar Surolia vs. State of Rajasthan, 2005 (6) RDD 2029 , held that in view of said decisions the Government cannot insist that employee must get himself treated in a Government hospital; all that the Government can do is to reimburse the employee at the rate applicable in the recognized Government hospital. Accordingly, the learned Single Judge allowed the writ petition with a direction to the appellants to reimburse the expenses incurred by the respondent. .5. Accordingly, the learned Single Judge allowed the writ petition with a direction to the appellants to reimburse the expenses incurred by the respondent. .5. Before proceeding further Section 4A(2) of the Act may be noticed as under:-"Subject to rules, if any made in this behalf by the State Government, every person entitled to pension under Sub-section (1) shall with effect from the date of commencement of the Rajasthan Legislative Assembly (Officers and Members Emoluments and Pensions) (Amendment) Act, 1998 (Act No. 5 of 1998) be entitled also to the reimbursement on account of medical treatment of a sum not exceeding rupees two thousand four hundred per annum and shall further be entitled to any expenditure incurred beyond rupees two thousand four hundred if the same is incurred for treatment as an indoor patient in any Government Hospital of the State, and also to one free non-transferable pass upto the age of 65 years which would entitle him to travel and to two free non-transferable passes after the age of 65 years which would entitle him and pay any other person accompanying him to travel at any time by the Rajasthan State Road Transport Corporation Service on whichever route it operates or such class of accommodation and subject to such condition as may be prescribed: Provided that where such person is also entitled to any of the aforesaid facilities for the time being as President, Vice-President, or Governor of any State or the Administrator of any Union Territory or as Member of Parliament or for any other State Legislature or the National Capital Territory of Delhi, or from the Central Government or any State Government or any Corporation owned or controlled by the Central Government or any State Government or any local authority, under any law or otherwise he shall be entitled to that facility to that extent." 6. It is not in dispute that the respondent being an ex-member of the Rajasthan Legislative Assembly comes under the purview of the Act. There is also no dispute about his wife undergoing angiography and open heart surgery involving replacement of valves on 21.06.2001. The only dispute is whether the expenses incurred in treatment in a private hospital, and not in a Government hospital as an indoor patient, the respondent is entitled to reimbursement of the expenses. 7. There is also no dispute about his wife undergoing angiography and open heart surgery involving replacement of valves on 21.06.2001. The only dispute is whether the expenses incurred in treatment in a private hospital, and not in a Government hospital as an indoor patient, the respondent is entitled to reimbursement of the expenses. 7. In Surjit Singh vs. State of Punjab & Ors., 1996 (2) SCC 336 the Supreme Court held that self preservation of ones life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution, fundamental in nature, sacred, precious and inviolable. After observing thus that the appellant had a right to take steps in self -preservation, in Para 12 of the Judgment , the Court stated- "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 the facts of the case the Supreme Court upheld the appellants claim of reimbursement of treatment in the Escorts Heart Institute, New Delhi. In that case the appellant had gone abroad for medical treatment and claimed reimbursement at the rates applicable in Escorts Heart Institute, New Delhi. Observing that the appellant by getting the surgery performed in London had incurred considerable expenses it would be fair and just that he is paid at the rates admissible as per Escorts which was one of the designated hospitals. 8. In State of Punjab & Ors. vs. Ram Lubhaya Bagga & Ors., 1998 (4) SCC 117 , the Supreme Court observed that in terms of Article 21 read with Articles 41 and 47 of the Constitution it is an obligation of the State to secure health to its citizens as one of its primary duty, but keeping in view its financial resources, it is open to the State to restrict financial assistance to its employees for medical treatment. The Court was considering the validity of the revised policy dated 13.02.1995. The Court was considering the validity of the revised policy dated 13.02.1995. According to the previous policy, re-imbursements of medical expenses charged by designated hospitals like Escorts, Apollo etc. were admissible under the new policy, however treatment could be had in any hospital but re-imbursement was restricted to the rates fixed by the Director, Health & Family Welfare, Government of Punjab. While upholding the new policy the Supreme Court allowed reimbursement to the extent of rates in All India Institute of Medical Sciences (AIIMS). It may not be out of place to quote the following observations from the Judgment - "No doubt the Government is rendering this obligation by opening Government hospitals and health centers, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, to reduce the queue of waiting lists, and it has to provide all facilities for which an employee looks for at another hospital." 9. In State of Punjab & Ors. vs. Mohan Lal Jindal, 2001 (9) SCC 217 , relying on State of Punjab vs. Ram Lubhaya Bagga, (Supra) the Supreme Court held that the respondent was entitled to medical reimbursement at AIIMS rates. The direction of the High Court for payment of additional amount which respondent had claimed was not approved, but considering the status of the respondent (who was a teacher), permitted him to make representation for payment of additional amount on compassionate ground. 10. A Division Bench of this Court in Anil Kumar Surolia vs. The State of Rajasthan & Ors., 2005 (3) WLC396, held 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. The Court further observed:- "…………Government cannot insist upon an employee to get himself treated at recognized Government institutions. All that the Government in these circumstances can do is to reimburse the concerned employee at the rates that may be applicable in the recognized Government institutions." 11. In the above backdrop of legal position it is to be considered whether the direction of the learned Single Judge to reimburse the medical expenses at the rates applicable in recognized Government hospital requires any interference. 12. In the above backdrop of legal position it is to be considered whether the direction of the learned Single Judge to reimburse the medical expenses at the rates applicable in recognized Government hospital requires any interference. 12. As indicated above, the facts of the case are not in dispute and the only ground on which the appellants seek to resist the claim of the respondent is that his wife did not receive treatment as an indoor patient in a recognized Government hospital of the State. 13. No doubt, the respondent chose to get his wife treated in a private hospital. Had he received treatment in a Government hospital, say SMS Hospital, Jaipur, he would have indisputably been entitled to reimbursement of expenses. We see no reason why -following the ratio of the decisions in Surjit Singh, Ram Lubhaya Bagga and Mohan Lal Jindal, he should be denied reimbursement at the rates applicable in the Government hospital merely because he preferred to get the treatment in a private hospital. The foundational facts of the respondents claim being not in dispute, we are of the view, the respondent should be allowed reimbursement of expenses incurred by him at the rate prescribed for Government hospitals for treatment of his wife. 14. In the result, order of the Single Judge is accordingly modified and the appeal is dismissed in the above terms.