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2016 DIGILAW 456 (RAJ)

Babu Lal v. State of Rajasthan

2016-03-30

SANDEEP MEHTA

body2016
ORDER : Sandeep Mehta, J. By way of the instant writ petition, the petitioner seeks a direction to be issued to the respondents to reimburse the medical expenses borne in the treatment of his wife's cardiac, which she had to undergo in an emergent condition at the Santokbha Durlabhji Hospital, Jaipur in May 2005. 2. The petitioner's wife retired from the services of the Education Department of State of Rajasthan on 31.7.2002 and was issued a PPO No.863349(R) and also a medical diary by the respondents. She was a permanent resident of Bhilwara. 3. It is averred in the writ petition that the petitioner's wife was suddenly diagnosed with advance stage of cancer disease was suggested to be operated. However, before she could be operated for cancer, she suffered sudden cardiac discomfort and thus the cancer surgery had to be put off so that she could be firstly treated for the cardiac ailment. Accordingly, she was admitted at SMS Hospital but due to the long waiting list of patients suffering from similar problem, she could not be operated immediately. Therefore, in such an emergent situation, she was admitted in Santokbha Durlabhji Hospital, Jaipur and was operated for her heart ailment. Thereafter, she was operated for cancer disease. However, after both the procedure, her condition deteriorated and she ultimately passed away on 13.9.2005. A total expenditure of Rs. 2,10,289/- was incurred in the above treatments including expenses towards purchase of medicines etc. The petitioner submitted the bills of medical expenses to the respondent department and claimed reimbursement thereof but the same was rejected by the respondent No.4 vide order dated 26.5.2006 on the ground that the treatment of the petitioner was not undertaken in a Government hospital. Hence, the petitioner has approached this Court for issuance of a writ or order to the respondents to reimburse the medical bills. 4. Learned counsel for the petitioner submits that the petitioner's wife had to undergo treatment for cardiac ailment in an emergent condition at the Santokbha Durlabhji Hospital, Jaipur, inasmuch as, she was firstly admitted at the SMS Hospital but due to long waiting list of patients, she could not be operated in time, and as such, it became imperative to have her treated at a private facility as her condition was deteriorating day by day. He relies on the decision of this Court in the case of Jawahar Lal Bohra v. State of Rajasthan (S.B. Civil Writ petition No. 6350/2005) decided on 26.3.2014 and prays that the writ petition deserves to be accepted and the respondents be directed to reimburse the medical expenses borne in the petitioner's wife's treatment in accordance with Rajasthan State Pensioners Medical Concession Scheme. Learned counsel has also made an application for deciding the writ petition in light of the order dated 5.3.2013 passed by this Court in S.B. Civil Writ Petition No. 395/2009 "Brej Mohan Shrimali v. State of Rajasthan & Ors.". 5. Learned counsel for the respondents has vehemently opposed the submissions advanced by the learned counsel for the petitioner. However, he candidly conceded that in similar matters, this Court has directed reimbursement of the medical expenses borne by the retired employees at the rate which is applicable for similar treatment in recognised hospitals. 6. The controversy regarding the entitlement of the retired Government employees to receive medical reimbursement has already been settled by this Court in a catena of decisions including the judgments rendered in the case of Gyanendra Kumar Pareek v. State of Rajasthan & Ors. reported in 2009 (4) WLC (Raj.) 95and in the case of Anil Kumar Surolia v. State of Rajasthan reported in 2005 (3) WLC(Raj.) 396. 7. It is admitted that the petitioner's wife, a retired Government employee, suffered a sudden cardiac problem and was admitted in an emergent situation at SMS Jaipur where owing to a long waiting list, she could not be operated immediately. The petitioner had no option but to take his wife to a private facility i.e. Santokbha Durlabhji Hospital, Jaipur for treatment in an emergent situation. Definitely and without any doubt, it was on account of an emergent condition that the petitioner's wife had to be operated for her cardiac ailment at the above hospital. In such situation, the petitioner is entitled to be reimbursed with medical expenses borne in his wife's treatment at the Santokbha Durlabhji Hospital, Jaipur in accordance with the Rajasthan State Pensioners Medical Concession Scheme. 8. This Court considered the issue of emergent situation in the case of Gyanendra Kumar Pareek v. State of Rajasthan & Ors. In such situation, the petitioner is entitled to be reimbursed with medical expenses borne in his wife's treatment at the Santokbha Durlabhji Hospital, Jaipur in accordance with the Rajasthan State Pensioners Medical Concession Scheme. 8. This Court considered the issue of emergent situation in the case of Gyanendra Kumar Pareek v. State of Rajasthan & Ors. reported in 2009(4) WLC(Raj.)-95 and held that when a family member suffers from cardiac ailment, the prime objective of the other family member would be to save his/her life. At that time, services of whichever hospital is suited could be utilised because emergency knows no law and no procedure and when human life is at stake, in such situation, ultimate responsibility of the State cannot be washed off. While deciding Gyanendra Kumar Pareek's case (supra), the Court relied upon the decision of the Division Bench of this Court in Anil Kumar Surolia v. State of Rajasthan reported in 2005(3) WLC(Raj.)- 396 wherein the Division Bench observed as under:- "Government cannot insist upon an employee to get himself treated at recognised Government institution. All that the Government in these circumstances can do is to reimburse the concerned employee at the rates that may be applicable in the recognised Government institution. Reference in this connection may be made to the judgment of the Hon'ble Supreme Court in Surjit Singh v. State of Punjab reported in AIR 1996 SC-1388 and State of Punjab & Ors. v. Mohan Lal Jindal reported in (2001) 9 SCC 217 . Consequently, the reimbursement of the medical expenses borne by the State Government employees and pensioners has to be done even if the treatment is undertaken at unrecognized hospital outside the State even though reference may not have been taken prior to treatment." 9. Certain amendments were made in the Rajasthan State Pensioners Medical Concession Scheme vide order dated 19.12.2004 which are relevant for the purpose of disposal of this writ petition and are reproduced herein below:- "The Governor is pleased to make the following amendments in the Rajasthan State Pensioners Medical Concession Scheme, namely-In the said Scheme. 1. Certain amendments were made in the Rajasthan State Pensioners Medical Concession Scheme vide order dated 19.12.2004 which are relevant for the purpose of disposal of this writ petition and are reproduced herein below:- "The Governor is pleased to make the following amendments in the Rajasthan State Pensioners Medical Concession Scheme, namely-In the said Scheme. 1. The existing words "Implantation of Pacemaker and Angioplasty/Balloonplasty" appearing in the sub-para 4B(i) shall be deleted and the existing sub-para 4B (ii) may be re-numbered as sub-para 4B(iii) and new sub para 4B(ii) may be inserted as under:- "(ii) A Pensioner and the members of his family as defined in sub-para (5) of para 3 of the scheme shall be entitled for grant of financial assistance in respect of specialised treatment of implantation of Pacemaker and Angioplasty/Balloonplasty taken in Government Hospital within the State of Rajasthan as under: (a) Pacemaker Actual cost of Pacemaker subject to the maximum of Rs. 60,000/- (b) Angioplasty/Balloonplasty Actual expenditure incurred subject to the maximum of Rs. 35,000/- (c) For Stent/Stents Actual expenditure incurred subject to the maximum of Rs. 75,000/-." 2. The existing para 4E shall be substituted by the following namely. "4E. Treatment of heart ailment in recognised hospital outside the State (with or without the recommendation of the Medical Board) (w.e.f. 5.8.2004). (a) In case it is recommended by the Medical Board that by-pass surgery for heart is indicated, the pensioner can get himself operated in any of the hospitals recognised by the Government outside the State for this purpose. Such pensioner may be allowed 80% of hospital expenses limited to Rs. 48,000/- being 80% of General Ward charges of All India Institute of Medical Sciences, New Delhi. (b) In case a pensioner undergoes by-pass surgery of heart (cardio Thoracic surgery) in any recognised hospital outside the State in emergent circumstances without any recommendation of the Medical Board, he may be allowed 80% of hospital expenses limited to Rs. 48,000/- i.e. 80% of General ward charges of AIIMS, New Delhi provided that he submits a Certificate from a cardiologist who took a degree of D.M. In Cardialogy as MCH in Cardio Thoracic Surgery stating that pensioner's condition was such that immediate treatment was essential. 48,000/- i.e. 80% of General ward charges of AIIMS, New Delhi provided that he submits a Certificate from a cardiologist who took a degree of D.M. In Cardialogy as MCH in Cardio Thoracic Surgery stating that pensioner's condition was such that immediate treatment was essential. In case a pensioner takes treatment of Angioplasty/Balloonplasty and stents in recognised hospitals outside the state, he/she may be allowed financial assistance as under:- (i) For Angioplasty/Balloonplasty Actual amount of expenditure incurred subject to the maximum of Rs. 35,000/- (ii) For Stent/Stents Actual cost of Stent/Stents subject to the maximum of Rs. 60,000/- (80% of Rs. 75,000/-)" 10. Thus, as per the said amendment, the only hurdle against the petitioner for being granted the relief of reimbursement of the medical bills is that his wife took treatment at a private hospital without any reference. However, as has been noted above, the Division Bench of this Court has already laid the issue to rest by observing that even if the treatment is taken without any reference at an unrecognized hospital outside the State, then also, the reimbursement thereof has to be done at the rates prescribed in the Concession Scheme. Another order came to be passed by the State Govt. on 21.12.2009 which puts the controversy beyond the palour of doubt and reinforces petitioner's claim for reimbursement. The order is quoted herein below:- "No. F.1(6) FD(Rules)/2012 Jaipur dated 21 DEC 2009 Subject:- Reimbursement of cost of implants and reimbursement of medical attendance and treatment in private hospitals to pensioners/family pensioners under Rajasthan Pensioners Medical Concession Scheme. State Government has decided to extend the facility of Medical Attendance and treatment to State pensioners/family pensioners in private or charitable hospitals, as applicable to State Government servants under Finance Department order No. F.6(4)FD(Rules)/03 Pt.-I dated 27.11.2009 pertaining to the period prior to 19.06.2009. Such claims of treatment shall be considered and decided by the Sub-Committee of the Trust." 11. As a consequence, the action of the respondents in refusing to reimburse the medical bills of the petitioner's wife treatment cannot be approved as being unjust and arbitrary. 12. In such situation, the petitioner is entitled to be reimbursed with medical expenses borne by him in his wife's treatment at the Santokbha Durlabhji Hospital, Jaipur in accordance with the Rajasthan State Pensioners Medical Concession Scheme. 13. 12. In such situation, the petitioner is entitled to be reimbursed with medical expenses borne by him in his wife's treatment at the Santokbha Durlabhji Hospital, Jaipur in accordance with the Rajasthan State Pensioners Medical Concession Scheme. 13. Accordingly, it is hereby directed that the respondents shall forthwith reimburse the amount of medical expenses borne by the petitioner in his wife's treatment at the Santokbha Durlabhji Hospital, Jaipur in accordance with the Rajasthan State Pensioners Medical Concession Scheme. The reimbursement shall be made within a period of four weeks from the date of receipt of copy of this order. 14. The I.A. No.1728/2016 has become in fructuous and is dismissed as such. 15. No order as to cost.