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2017 DIGILAW 2415 (RAJ)

Hardev Ram Kaler v. State of Rajasthan

2017-11-03

SANJEEV PRAKASH SHARMA

body2017
JUDGMENT : SANJEEV PRAKASH SHARMA, J. 1. Question raised by the petitioner is whether he should be paid the reimbursement amount for the treatment of his wife for knee replacement conducted at Shalby Hospital, Ahmedabad which is a recognised approved hospital by the State Government of Rajasthan. 2. The State has rejected the claim saying that the treatment undertaken was without reference from a Medical Board. Adverting to a rule made by them in the Rajasthan Medical Attendance Rules, 2008, which requires prior reference from Medical Board if an individual is treated out side the State. The rule has been framed on 16.12.2009 while the petitioner retired much earlier. The law relating to grant of reimbursement has been settled by various pronouncement of this Court as well as relating judgments passed by the Apex Court. In the case of State of Punjab and Ors. vs. Ram Lubhaya Bagga and Ors.: (1998) 4 SCC 117 the Apex Court was considering whether the State has a right to change its policy from time to time with regard to its financial resources and it was held that the State has an absolute right to amend its policies relating to medical expenses incurred in medical treatment from time to time. It was recognised by the Apex Court that such a right exists with the State whereby they may restrict financial assistance to its employees for medical treatment. It was held as under: "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 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 however 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 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. 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 then try point but also during the whole tenure of their service. Since it is one of the most sacrosanct and a 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 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. 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. 29. No State of any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizen including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India." 3. The said view was followed in State of Punjab and Ors. vs. Mohan Lal Jindal: (2001) 9 SCC 217 , holding that the government servant getting the treatment from any other hospitals would be only entitled to claim medical expenses as are reimbursable in government hospitals. In the said case the reimbursement for heart surgery was done at All India Institute of Medical Science. The D.B. of this Court in case of Anil Kumar Surolia vs. The State of Rajasthan and Ors.: (2005) 3 WLC 396 following the law as above, held as under: "6. In the factual background as detailed above, we are of the firm view 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. Self perseverance is the first instinct in every human being. Person having suffered heart attack is not expected to await treatment at a far off distance as time is the essence in saving valuable life in such matters. There is every risk of a person breathing his last if he has to await treatment of heart attack. Self perseverance is the first instinct in every human being. Person having suffered heart attack is not expected to await treatment at a far off distance as time is the essence in saving valuable life in such matters. There is every risk of a person breathing his last if he has to await treatment of heart attack. In the circumstances, even if such medical treatment as obtained by a government employee be available in the State itself, he shall be still entitled to medical reimbursement for the treatment obtained elsewhere if the same is necessitated on account of circumstances beyond his control. In emergent situation thus it is not incumbent for a patient to obtain medical treatment only in approved hospitals of the Government. We would have discussed the matter in further details as per provisions of the Rajasthan Civil Services (Medical Attendant) Rules but it is conceded during the course of arguments that if the petitioner was to obtain medical treatment at SMS Hospital at Jaipur or other government approved hospitals in the State of Rajasthan, he would have been paid the same amount for the treatment he ultimately got from Krishna Heart Institute. If that be a fact, and which as mentioned above, is conceded, we are of the view that the stand taken by the State Government is obdurate and wholly uncalled for. We could imagine if perhaps the petitioner had spent far more and was claiming the same while getting treatment in a non-approved hospital. Government in any case had to pay the same amount spent by the petitioner at Krishna Heart Institute even if the petitioner was to get treatment in SMS Hospital or other approved hospital in the State of Rajasthan. This Court cannot but deprecate the attitude of the Government in rejecting justified claims in teeth of the recommendations made by this Court. Registrar General of this Court indeed supported the cause of the petitioner but the favourable recommendations made by this Court have been turned down on wholly untenable grounds." 4. The condition thus is that the reimbursement shall be only to the extent of the amount which is payable in any government hospital or government recognised hospital. Admittedly, as per notification dated 10.09.2010 Shalby Hospital, Ahmedabad is an approved hospital of the State of Rajasthan. The condition thus is that the reimbursement shall be only to the extent of the amount which is payable in any government hospital or government recognised hospital. Admittedly, as per notification dated 10.09.2010 Shalby Hospital, Ahmedabad is an approved hospital of the State of Rajasthan. Question is whether a prior recommendation/reference from a Medical Board is essential for an individual before he gets the treatment done in an approved hospital by the State Government of Rajasthan. 5. In view of this Court such a condition imposed in the Medical Attendance Rules following of law laid down by the Apex Court in State of Punjab vs. Ram Lubhaya Bagga and Ors. (supra) is absolutely arbitrary and unjustified. Such a pre condition for treatment seeks to take away a right on an individual to lead independent, healthy life which is envisaged under Article 21 and Article 47 of the Constitution of India. 6. A citizen has an absolute right to get himself treated in the hospital where he feels, satisfied that he would be given best treatment and no official caveat can restrict such a right and if any such condition is imposed directing an individual to compulsorily get his treatment done from a particular hospital, it would amount to taking away his precious right to life and liberty and choose best treatment as per his and his near ones wishes for keeping his body healthy and fit and that of his dependents. This Court finds that even otherwise the condition does not have any nearer to the purpose sought to be achieved. It cannot be gainsaid to say that such condition can be misused in circumstances where a particular medical specialists who may be interested in conducting particular treatment may refuse reference to an individual for getting the same treated from other Doctor. Thus, such a condition in view of this Court is illegal and unjustified and can be ignored by a citizen who is or has been a government servant. 7. The purpose of Medical Attendance Rules is mainly with regard to reimbursement. As stated above, reimbursement would be in terms of the polices laid down by the government. Admittedly, as noted above for knee replacement Shalby Hospital has been duly recognised and therefore merely on account of non reference, the amount could not have been withheld. 8. 7. The purpose of Medical Attendance Rules is mainly with regard to reimbursement. As stated above, reimbursement would be in terms of the polices laid down by the government. Admittedly, as noted above for knee replacement Shalby Hospital has been duly recognised and therefore merely on account of non reference, the amount could not have been withheld. 8. Learned counsel has also informed that Coordinate Bench in two of the two cases namely SB CWP No. 768/2015: Kishan Gopal Bansal vs. State of Rajasthan & Ors. decided on 17.02.2017 and in SB CWP No. 12381/2013: Dharampal Gupta vs. State of Rajasthan & Ors. decided on 24.11.2016 has held the action of denying reimbursement on the ground of non reference to be bad and directions were issued for reimbursement. So far as the claim for medical expenses incurred in replacement of knee, in accordance with the Rajasthan State Pensioners Medical Concession Scheme, 2009, it was directed that the petitioner therein would be entitled for reimbursement of the claim as per amount payable for similar treatment in recognised hospitals. 9. In spite of the aforesaid judgments having attained finality, the State Government has denied the petitioner the said benefit and rejected his claim. 10. In view of the law as stated above, this writ petition is allowed and it is directed that the petitioner shall be entitled for reimbursement of the medical treatment claimed for the expenditures incurred in the treatment at Shalby Hospital, Ahmedabad as per Rajasthan State Pensioners Medical Concession Scheme, 2009. The reimbursement amount shall carry interest @ 9% per annum from the date it was payable. Compliance will be made within period of three months henceforth. It is made clear that if the compliance is not made, the petitioner shall be free to initiate contempt proceedings without further notice.