Sh. Kripal Singh vs State of H.P. and Others

Rajiv Sharma, J.—''Key facts'' necessary for the adjudication of this petition are that the petitioner''s wife was admitted in emergency in Sir Ganga Ram Hospital, New Delhi on 15.12.2010 and she was operated upon 17.12.2010 for ''Bilateral Total Knee Replacement''. Petitioner submitted reimbursement form claiming a sum of Rs. 4,30,790/- spent towards the treatment of his wife. Petitioner''s case was rejected on 27.03.2012. Mr. Adarsh K. Vashishta, learned counsel for the petitioner has vehemently argued that the petitioner was never apprised of the new policy promulgated on 21st June, 2008, whereby the earlier policy, Annexure P-1, dated 1st November, 2007, was superseded. He then submitted that the petitioner''s wife was admitted in emergency. He then contended that Annexure P-9, dated 27th March, 2012, is arbitrary, thus, violative of Article 14 of the Constitution of India.

Mr. Pramod Thakur, learned Additional Advocate General has vehemently argued that "Bilateral Total Knee Replacement" was an elective surgery, which could be planned.

I have heard the learned counsel for the parties and gone through the pleadings carefully.

It is not in dispute that Sir Ganga Ram Hospital, Delhi was recognized for the purpose of Hip and Knee replacement, as per the notification, dated 1st November, 2007. Petitioner''s wife was admitted in the hospital in emergency on 15.12.2010 and she was operated upon on 17.12.2010. There is no tangible evidence placed on record by the respondent-State that the new policy promulgated on 21st June, 2008, was brought to the notice of the petitioner. Petitioner remained genuinely under the impression that Sir Ganga Ram Hospital is recognized for the purpose of "Hip and Knee Replacement". The new policy has been promulgated on 21st June, 2008. Paragraph No. 9.9 of the policy reads as under:

9.9. In case treatment is taken in a non-empanelled institution in emergency, reimbursement shall be restricted to the rates of IGMC Shimla/Government Dental College, Shimla. In case the procedure/treatment is not available in the IGMC, Shimla/Government Dental College, Shimla the rates of PGIMER Chandigarh/AIIMS, Delhi/CGHS or actual whichever is least shall apply. In case there are no such rates the CGHS rates or actual whichever is less shall apply.

According to paragraph No. 10.2 of the new policy, in case of emergency, the treatment can be taken in a non-empanelled institution without referral. However, the question of emergency will be decided by the A.D. concerned and reimbursement shall be restricted as per this policy.

Paragraph No. 11 of the policy reads as under:

Emergency treatment in a non-empanelled institution: In case treatment is taken in emergency in an institution that is not empanelled or diagnostic tests are undertaken in a lab which is not empanelled within and/or outside the State, the question whether there was an emergency or not, being a question of fact, will be decided by the A.D. concerned. There will be no need to seek permission of the Government or Department of Health and Family Welfare in such cases. The decision of the A.D. whether there was an emergency or not shall be final.

What emerges from the combined reading of paragraphs No. 9.9 and 10.2 and 11, is that the treatment can be taken in a non-empanelled institution in emergency, however, the reimbursement is to be restricted to the rates of IGMC Shimla/Government Dental College, Shimla and in case the procedure/treatment is not available in the IGMC, Shimla/Government Dental College, Shimla, the rates of PGIMER, Chandigarh/AIIMS, Delhi/CGHS or actual which is least, shall be paid. The emergency treatment can be taken in a non-empanelled institution without referral and the question of emergency is to be decided by the A.D. concerned and the reimbursement is to be restricted as per the policy. The question whether there was an emergency or not is to be decided as per paragraph No. 11 of the policy. It is further stated in paragraph No. 11 of the policy that there will be no need to seek permission of the Government or Department of Health and Family Welfare in such cases and the decision of the A.D. whether there was an emergency or not shall be final.

The emergency has to be seen from the point of patient concerned/attendant. In the instant case, there was deterioration in the health of petitioner''s wife, which led to her immediate admission in Sir Ganga Ram Hospital, New Delhi on 15.12.2010, where she was operated upon on 17.12.2010. Petitioner has taken correct decision according to his own wisdom, taking into consideration all the circumstances while admitting his wife in Sir Ganga Ram Hospital, Delhi. Every individual will react differently in a particular situation. Some person may delay the procedure/treatment and other person may decide to take the precaution immediately in order to avoid complications. Petitioner has prudently got his wife admitted in the hospital, where she was operated upon for "Bilateral Total Knee Replacement". It cannot be said that it was an elective surgery, which could be planned. The discretion has to be left, though to be decided prudently by the patient or his guardian/attendant. The matter is required to be considered practically and not technically. Clause-11, as interpreted by the respondent-State, would result in miscarriage of justice. The person may be admitted in the hospital in emergency, according to own wisdom, but the decision has been left out wholly without any guidelines to be decided by the A.D. concerned whether there was emergency or not. The letter and spirit of the guidelines have to be taken into consideration while taking a decision whether there was emergency or not and it cannot be left to the whims and fancies of the Administrative Department. Even in those cases where a patient is admitted in emergency, the reimbursement can be denied while interpreting the word ''emergency'' by the Administrative Department in a mechanical manner, as has been done in the present case on the basis of Clause-11 of the policy.

The underlying principle of the scheme is that a person is permitted to take treatment in emergency, but the rates in a non-empanelled institution are restricted to the rates of IGMC Shimla/Government Dental College, Shimla. In case the procedure/treatment is not available in the IGMC, Shimla/Government Dental College, Shimla, the rates of PGIMER Chandigarh/AIIMS, Delhi/CGHS or actual whichever is least shall apply.

Mr. Adarsh K. Vashishta, learned counsel for the petitioner has also brought to the notice of the Court that similarly situate persons have been reimbursed the entire amount by relying upon the information supplied to his client vide Annexure P-11. It is clear from Sr. No. 11 of Annexure P-11 that Dr. K.K. Jindal, Retd. Director Research, UNF has undertaken the treatment of "Bilateral Joint Replacement" between 01.07.2008 to 31.12.2008 and one Shri Ishwar Dass Sood, Retd. Principal has undertaken treatment of "Knee Replacement" between 01.01.2010 to 31.12.2010 at Medanta Hospital Gurgaon (Haryana) on 19.02.2010 and they have been reimbursed the entire medical claim. Petitioner is also similarly situated vis-�-vis Dr. K.K. Jindal and Sh. Ishwar Dass Sood. The respondent-State has not chosen even to file sur-rejoinder to these averments made by the petitioner in the rejoinder. It is a case of invidious discrimination, thus, violative of Articles 14 and 21 of the Constitution of India. There has to be uniformity and consistency in all the administrative decisions taken by the State functionaries. The discretion has to be exercised judiciously and not according to humour. It cannot adopt the policy of pick and choose. In case there is any supersession/amendment/ modification/ addendum/ corrigendum in the previous policy, it should be brought to the notice of the concerned employees either by posting it on the official website or by way of publication in the recognized mode, more particularly, when it affects the rights of the parties prejudicially. The Recruitment and Promotion Rules and the amendment carried out in the same from time to time must be displayed on the official website and the copies should also be made readily available to the employees. Accordingly, in view of the discussions and analysis made hereinabove, the writ petition is allowed. Annexure P-9, dated 27.03.2012 is quashed and set aside. The respondent-State is directed to reimburse the medical claim to the petitioner submitted by him vide Annexure P-5 by restricting it to the rates of PGIMER Chandigarh/AIIMS, Delhi/CGHS, within a period of four weeks from today. The pending application(s), if any, also stands disposed of. No costs.