Kanahaiya Lal Dave vs The State of Rajasthan and Others

Sandeep Mehta, J.—By way of the instant writ petition, the petitioner seeks a direction to be issued to the respondents to reiumburse the medical expenses borne by him in the treatment of his wife, which she had to undergo in an emergent condition at the Apollo Hospital, Ahmedabad in December 2006.

The petitioner is a retired Male Nurse-I from the Medical and Health Department of the State of Rajasthan. He retired from service on 31.8.2001 and was issued with a PPO No. 432287(R) and also a medical diary by the respondents. He is a permanent resident of Samdari, District Barmer.

It is averred in the writ petition that the petitioner alongwith his wife had gone to Ahmedabad to visit his sister in the month of August 2006 where his wife fell ill and was admitted in an emergent condition at the Apollo Hospital, Ahmedabad. She remained admitted at the said hospital where she was operated for heart valve replacement (MVR), Open Heart Surgery, By-pass Surgery (CABG), wherein a total expenditure of Rs. 3,10,324/- was incurred. The petitioner submitted the bills of medical expenses to the respondent department and claimed reimbursement thereof but the same was not accepted by the respondents. Hence, the petitioner has approached this Court for issuance of a writ or order to the respondents to reimburse the medical bills of the petitioner.

Learned counsel for the petitioner submits that the petitioner alongwith his wife had gone to Ahmedabad to visit his sister and there, his wife suddenly fell ill and had to undergo treatment in an emergent condition and as such, it was absolutely impossible for him to have approached a government hospital in the State of Rajasthan or a recognized hospital for the treatment of his wife''s sudden ailment. He further submits that procuring a reference from a Medical Board or the Principal of the Medical College was not possible looking to the emergent situation. 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 incurred in the treatment of the petitioner''s wife in accordance with Rajasthan State Pensioners Medical Concession Scheme. Learned counsel for the petitioner states that the petitioner is ready to give up his claim for award of interest on the medical bill amount for the period during which the medical bills were not reimbursed.

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/Government hospitals.

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 Vs. State of Rajasthan and Others, (2009) 4 RLW 3134 and in the case of Anil Kumar Surolia Vs. State of Rajasthan and Others, (2005) 3 RLW 2169 : (2005) 3 WLC 14 .

It is not in dispute that the petitioner, a retired government employee, had gone to Ahmedabad alongwith his wife to visit his sister where his wife suddenly suffered heart ailment. She was admitted in an emergent situation in the Apollo Hospital, Ahmedabad and remained hospitalized as stated above. Definitely and without any doubt, it was on account of an emergent condition that the petitioner''s wife had to be subjected to treatment at a hospital outside the State of Rajasthan. Procuring a reference from a Medical Board or the Principal of the Medical College was also impossible looking to the emergent condition in which the treatment had to be undertaken.

This Court considered the issue of emergent situation in the case of Gyanendra Kumar Pareek Vs. State of Rajasthan and Others, (2009) 4 RLW 3134 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 utilized 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. This Court relied upon the decision of the Division Bench of this Court in Anil Kumar Surolia Vs. State of Rajasthan and Others, (2005) 3 RLW 2169 : (2005) 3 WLC 14 wherein the Division Bench observed as under:--

"Government cannot insist upon an employee to get himself treated at recognized 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 recognized government institution. Reference in this connection may be made to the judgment of the Hon''ble Supreme Court in Surjit Singh Vs. State of Punjab and Others, (1996) 1 AD 1003 : AIR 1996 SC 1388 : (1996) 2 JT 28 : (1996) 1 SCALE 648 : (1996) 2 SCC 336 : (1996) 1 SCR 1095 : (1996) 1 UJ 523 and State of Punjab and 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."

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 hereinbelow:--

"The Governor is pleased to make the following amendments in the Rajasthan State Pensioners Medical Concession Scheme, namely-

In the said Scheme.

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 specialized 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/-."

The existing para 4E shall be substituted by the following namely.

"4E. Treatment of heart ailment in recognized 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 recognized 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 recognized 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.

In case a pensioner takes treatment of Angioplasty/Balloonplasty and stent(s) 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/-)"

Thus, as per scheme of medical concession applicable to the retired employees, the only hurdle against the petitioner for being granted reimbursement of the medical bills is that his wife was subjected to treatment at an unrecognised hospital outside the State and that too without a reference being made. 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 at an unrecognized hospital and without any reference, 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 completely puts the controversy to rest and reinforces the petitioner''s claim for reimbursement. The order is quoted hereinbelow:--

"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."

As a consequence, the action of the respondents in not reimbursing the medical bills of the petitioner cannot be approved as being unjust and arbitrary.

Consequently, the petitioner is entitled to be reimbursed with medical expenses borne by him in his wife''s treatment at the Apollo Hospital, Ahmedabad in accordance with the Rajasthan State Pensioners Medical Concession Scheme.

Accordingly, while accepting the writ petition, 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 Apollo Hospital, Ahmedabad in accordance with the Rajasthan State Pensioners Medical Concession Scheme. The reimbursement shall be made within a period of eight weeks from the date of receipt of copy of this order. If the payment is delayed beyond the period of eight weeks, the due amount shall carry interest @ 12% per annum.

No order as to cost.