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2011 DIGILAW 1205 (PAT)

Pushpa Sinha v. State Of Bihar

2011-06-27

NAVIN SINHA

body2011
JUDGEMENT 1. Heard learned Counsel for the petitioner and the learned Counsel for the State. 2. The husband of the petitioner suffered serious ailment in both his Kidneys in the year 2001, an acute case of chronic renal failure, a life threatening situation. He was initially treated at the Indira Gandhi Institute of Medical Sciences (hereinafter referred to as IGIMS) *and Patna Medical College and Hospital. He was then referred to the All India Institute of Medical Sciences (hereinafter referred to as AIIMS) at New Delhi in a critical condition for Kidney transplant operation. Due to a long waiting list of patients to be operated and his critical condition he could ill afford to wait except at the cost of his life. He was therefore taken to the Indraprastha Apollo Hospital, New Delhi, where his mother-in-law donated one of her Kidneys and the operation was performed. He returned to Patna on 26.1.2002 after recuperating. A sum of Rs. 4,74,015.80 Paise was the bill raised by the hospital. The family raised loans for the purpose. The bills were submitted by him and a sum of *Rs. 2,22,890.60 Paise only was reimbursed. A sum of Rs. 2,73,943/- remains outstanding. 3. On 31.1.2002 much after the operation formal orders had been issued by the Department of Health under Rule 26 of the Bihar Medical Attendance Rules, approving the treatment at the AIIMS, New Delhi or at Sanjay Gandhi Post Graduate Institute at Lucknow, in view of the special circumstances. The sanction order further stated that the expenditure shall be reimbursed on production of necessary materials countersigned by the treating authority, as permissible. 4. While the claim remained pending for long years the husband of the petitioner died on 25.9.2008 leaving behind his widow and a son aged ten years. 5. The deceased was a Junior Assistant Research Officer posted at Institute of Animal Health and Production, Patna in the Department of Animal Husbandry. The Court can take judicial notice of the fact that given his status in service the salary that he may have been drawing at the relevant point of time, the expense of medical treatment required, more so for a specialized treatment of Kidney transplant, it must surely have been far beyond his means. The writ petition states that loans had to be raised. The remaining source may have been his own savings. The writ petition states that loans had to be raised. The remaining source may have been his own savings. The Court is satisfied that the present claim deserves a closer scrutiny as also in the changed circumstances after his death where if the reimbursement is permissible in law it naturally carries great significance for his family after his death. 6. Learned counsel for the petitioner submits that the issue of the claim is fully covered by the judgments of this Court in 2003(3) PLJR 729 (Ram Sagar Ram V/s. The State of Bihar), 2008(2) PLJR 182 (Lal Bahadur Gupta V/s. The State of Bihar) and in CWJC No. 7142 of 2000 disposed on 9.7.2000 (Dr. Dhirendra Kumar V/s. The State of Bihar) relying on the case of Ram Sagar Ram (supra). 7. Fairness required the respondents not to thrust litigation upon the petitioner but to consider the claims in light of the law laid down by the Court time and again. Reliance is also placed on a subsequent decision of the State Government dated 7.2.2007 that in an ailment like Kidney transplantation, heart surgery, cancer and spinal surgery which are extremely expensive there shall be no limit of reimbursement as per rules. 8. A counter affidavit has been filed on behalf of the respondents affirmed by a Leave Reserve Officer, Directorate of Animal Husbandry, one Dr. Sidh Nath Rai. Counsel for the State submits from the same that the Medical Board constituted by the Health Department had given conditional post facto approval for treatment by such surgery vide letter dated 27.9.2002 at the AIIMS or Sanjay Gandhi Post Graduate Institute Lucknow. The policy of the State Government dated 7.2.2007 was prospective in nature and cannot be applied retrospectively to a treatment obtained in 2002. The claim raised was therefore exaggerated inadmissible in law. The reimbursement can only be to be extent that the treatment would have cost at the two approved Institutions. 9. The Department of Health has been made a party respondent through its Secretary and Director as also the Secretary of the Finance Department have been impleaded as party respondents. The writ petition was filed on 7.1.2009. Apart from the extremely brief and very casual counter affidavit noticed above, no other counter affidavit has been filed by any of the State respondents despite passage of over two and half years. The writ petition was filed on 7.1.2009. Apart from the extremely brief and very casual counter affidavit noticed above, no other counter affidavit has been filed by any of the State respondents despite passage of over two and half years. The Court expresses its anguish of the manner in which the officials of the State appear to be not serious about their duty in assisting the Court for timely dispensation of justice, delaying consideration of justice to a citizen if not actively impeding access to justice by deliberate inaction. 10. There has to be a difference between matters which first see light of the delay (sicday ?) requiring adjudication by the Court and interpretation of rules, regulations and administrations. But once, the issue has been decided by the Court, the question has to be considered in light of the law as may have been laid down by the Court. While a citizen may have a claim against the State, the officials of the State are fully justified in defending the litigation against the State to protect its interest and revenue. In fact it shall be their bounden duty to do so. But that shall not detract from their primary duty of answerability and accountability for their actions. No officer of the State can take the stand that though the petitioner may have a case or claim he shall not approve of it at his whim and leave the citizen to approach the Court and obtain appropriate orders. Because of the discretion vested in the officer, the discretion was absolute to be exercised at his will and not in accordance with law and what the Court may have said in interpreting the rules, regulations and instructions was not his concern. If that were to be so indeed it is unfortunate. 11. Consequent to the recommendations of the 13th Finance Commission and the framing of a National Litigation Policy thereafter the State Government has also framed the Bihar State Litigation Policy, 2011. The objective is to evolve a comprehensive mechanism and effective strategies to bring about a durable improvement in the manner in which litigation is managed and conducted by the State Government and to transform the State Government into an efficient and responsible litigant. Ensuring that good cases are won and bad cases are not needlessly persevered with. The objective is to evolve a comprehensive mechanism and effective strategies to bring about a durable improvement in the manner in which litigation is managed and conducted by the State Government and to transform the State Government into an efficient and responsible litigant. Ensuring that good cases are won and bad cases are not needlessly persevered with. The Government was not an ordinary litigant and that a case does not have to be won at any cost. Genuine cases should be resolved quickly. It explains a responsible litigant as one not resorting to for the sake of litigating. Not raising hyper technical pleas and which should be discouraged. Nothing should be suppressed from the Court and there should be no attempt to mislead any Court or Tribunal. The primary duty of the Government was to protect the rights of the citizen, a basic principle never to be forgotten. The basic principle was to prevent an "over loaded judiciary and expedite dispensation of justice". The policy has force of an administrative regulation. Clause 4(C) deals with "Covered Matters" and reads as follows: "4.C(1) A good number of cases are from the category of similar cases. Each Government Department will aim to consider and settle the claim of the representationist/applicant-employee/citizen, if the claim is found covered by any decision of the Court. Many service matters of this nature, can be disposed of at the level of the Department itself without compelling the litigant to come to the Court. In this manner, the Government Departments would be acting as efficient litigants." 12. The Court at this stage does not consider it necessary to deal with further issues of the policy. 13. There can be no two opinions that when both Kidneys of an individual fail no further explanation or proof is required of a life threatening situation. Life threatening situations cannot wait for bureaucratic procedures. One does not have to undergo the same travails and pains to realize the agony of a life threatening situation. Those dealing with such matters are expected to display a high level of sensitivity so essential for any society which calls itself civilized. 14. No discussion is required and the Court can take judicial notice of the fact that there is no facility available in this State for Kidney transplantation. Those dealing with such matters are expected to display a high level of sensitivity so essential for any society which calls itself civilized. 14. No discussion is required and the Court can take judicial notice of the fact that there is no facility available in this State for Kidney transplantation. What was noticed by a Bench of this Court as far back as 2003 in the case of Ram Sagar Ram (supra) holds good today. In fact the observations contained in Para 8 of the judgment apply with full force to the present case which reads as follows:- "8. Before I part with this case I may observe that the Bihar Medical Attendance Rule framed in 1947, i.e. more than five decades ago have become archaic talk. Without going into the question as to whether there was any justification for not making any provision for outside State treatment at the relevant time, a judicial notice can be taken of the fact that most of the serious ailments which are hazardous to life require specialized treatment which is not available in the State of Bihar; much less in Government Hospitals, and therefore the patient perforce has to go New Delhi, Mumbai, Vellore or the like for better treatment. It is therefore only appropriate to make suitable amendment in the Rules. As a matter of fact need of the hour to frame and comprehensive policy or rule as done in the State of Punjab, referred to above, rather than supplement them by executive orders and circulars from time to time. Rule 26 empowers the Government to permit outside State treatment and attendance as a matter of discretion. In as much as guidelines are not laid down the discretion is more often than not abused. While persons close to the powers/that/be manage to get permission, the lessor mortals are not so fortunate to get such permission resulting in heart burning and frustration. So far as the requirement of prior approval of the Medical Board is concerned, in cases of emergency the provision is totally unjustified, meaningless and unworkable. These things can be taken care of in a well laid down policy be consistent with not only Articles 21 and 47 but also Article 14 of the Constitution." (emphasis added) 15. So far as the requirement of prior approval of the Medical Board is concerned, in cases of emergency the provision is totally unjustified, meaningless and unworkable. These things can be taken care of in a well laid down policy be consistent with not only Articles 21 and 47 but also Article 14 of the Constitution." (emphasis added) 15. If the case of Ram Sagar Ram was not enough to make out a case for full reimbursement under Rule 26, in the case of Lal Bahadur Gupta (supra) relied upon also the treatment on emergency basis was sanctioned in the year 2001. The Court in anguish noticed at Para 7 as follows: "7. It is thus manifest that it was undoubtedly a case of emergency and the respondent authorities have taken an irrational and unreasonable stand in rejecting it on the ground that it was not a case of emergency because the prescriptions do not say so. Secondly, the impugned order states that the petitioner had undergone surgery at the centre on his own which is impermissible in law. I feel very unhappy at the heartless attitude adopted by the respondents for various reasons. What difference does it make to the State Government if the petitioner would have undergone surgery at AIIMS or at the Centre in a situation where sanction for permission for the surgery outside the State of Bihar had already been granted,. There was not enough time to obtain prior permission for the operation at the centre. The emergent circumstances in which he had undergone surgery at Calcutta has been discussed hereinabove." 16. The "heartless attitude" of the respondents is reflected in their hardened heartless approach in the present case notwithstanding the judicial pronouncements and with no defence to distinguish or differentiate the order to overcome the same. 17. The desperate attitude of the respondents to distinguish the case of the petitioner on the ground that the claim for full reimbursement being made under the circular dated 7.2.2007 had to be prospective in nature only is extremely unfortunate and displays a wonton attitude which may virtually be understood as that the Court may say what it may wish to say but nonetheless the officials acting on behalf of the State shall stick to their earlier stand contrary to court orders. The fact that failure of both kidneys is a life threatening situation does not need to be pronounced or affirmed by any Government circular dated 7.2.2007. It remains a life threatening situation even prior to the issuance of the circular. The distinction thus sought to be drawn is not only arbitrary, devoid of merit, substance and logic but is also contrary to the earlier judicial pronouncements of the Court. 18. In fact in the case of Dr Dhirendra Kumar a Bench of this Court on 9.7.2007 with reference to the case Ram Sagar Ram (supra) in light of Rule 26 of the Bihar Medical Attendance Rules has already observed that the "State Government would be well advised to examine all such cases.....". In all the cases relied upon by the petitioner direction for full reimbursement has been made. In fact in the case of Lal Bahadur Gupta costs were imposed alongwith interest and in the case of Dr. Dhirendra Kumar 9% interest was granted. 19. Counsel for the State found it difficult to satisfy the Court of the nature of the defence, absolutely frivolous, taken on behalf of the respondents more so when the matter stands settled by more than one judgment of this Court on the issue. 20. If timely treatment was not available at the AIIMS or at Lucknow was the applicant required to rescile himself to his fate to meet his maker merely because the respondents would not countenance any other treatment obtained by him. 21. It is held that the petitioner is entitled to full reimbursement of the kidney transplant operation expenses incurred on treatment of her husband. The balance amount of Rs. 2,73,983/- is directed to be paid within a maximum period of four weeks from the date of receipt and/or production of a copy of this order before the Secretary, Department of Health, Government of Bihar. The procedural requirements to be complied shall not be a defence. If the amount is not paid within that period it shall carry interest @ 9% from 7.1.2009 the date of institution of the writ application till date of payment alongwith costs payable by the State to the petitioner quantified at Rs. 25,000/-. 22. The procedural requirements to be complied shall not be a defence. If the amount is not paid within that period it shall carry interest @ 9% from 7.1.2009 the date of institution of the writ application till date of payment alongwith costs payable by the State to the petitioner quantified at Rs. 25,000/-. 22. The Court considers it proper to direct the grant of interest and cost simultaneously as it is satisfied in the facts and circumstances of the case that not only in those in whom the Government placed trust belied that trust but have also harassed the citizen unnecessarily that too a widow and wasted the time of the Court on matters which stands judicially well settled. 23. Let a copy of this order be sent to the Chief Secretary of the State of Bihar so that appropriate remedial action is taken and matters which stands covered by Court decisions are suo moto reviewed administratively in terms of the State Litigation Policy and if the respondents are satisfied that a claim is not covered by the decision of the Court they are required to take a clear stand pointing out issues of difference to enable adjudication if so required. The Court expects that the Chief Secretary shall ensure that the order of this Court is fully complied with within the time indicated. 24. In the event that the State is ultimately saddled with interest and cost the Chief Secretary shall ensure that it is recovered from the salary of the official concerned, and duly intimated to the office of the Accountant General. 25. The writ application stands allowed.