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Kifayat Hussain vs State & Ors on 30 June, 2008

Rajasthan High Court - Jodhpur Rajasthan High Court - Jodhpur Kifayat Hussain vs State & Ors on 30 June, 2008 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR <<>> :: O R D E R :: Kifayat Hussain Vs. State of Rajasthan & Ors. S.B. CIVIL WRIT PETITION NO. 3095/2001. Date of Order :: 30th June 2008. PRESENT HON'BLE MR.JUSTICE DINESH MAHESHWARI Mr.M.S.Singhvi with Mr.Akhilesh Rajpurohit and Mr.Vineet Dave for the petitioner Mr.Rameshwar Dave, Addl. Govt. Counsel for the respondents REPORTABLE BY THE COURT By way of this writ petition, while putting a challenge to the phraseology of Rule 7(1) of the Rajasthan Civil Services (Medical Attendance) Rules, 1970 ('the Rules of 1970'), the petitioner has prayed for quashing of the communication dated 25.06.2001 (Annex.9) and directions to the respondents to make payment of the expenditure incurred by him for bypass 2 surgery at Escorts Heart Institute, New Delhi (hereinafter also referred to as 'Escorts' for short). While pointing out that he entered the services of Government of Rajasthan in the Department of Revenue as LDC in the year 1968, was promoted to the post of UDC, and is working on such a post in the Collectorate at Banswara, the petitioner has averred that he suffered heart attack in the month of September 1999 and after primary treatment at Banswara, he was referred to and was treated at RNT Medical College Hospital, Udaipur; that after treatment at Udaipur for some time, he was referred for investigation and treatment to SMS Hospital, Jaipur (hereinafter also referred to as 'SMS' for short) under the communication dated 15.06.2000 (Annex.1); that he went to Jaipur and contacted Dr.R.K.Madhok, Professor and Head, Department of Cardiology, SMS Medical College, Jaipur; that he was admitted at SMS and thereafter angiography was conducted on 12.07.2000 in which two blockages in coronary artery were discovered and he was advised Coronary Artery Bypass Surgery (CABG). The petitioner has alleged that due to improper angiography, a clot developed in his right femoral artery and he was also not satisfied with the result of angiography and, therefore, expressed that he would like to have his examination and treatment at Escorts Heart Institute, New 3 Delhi. According to the petitioner, he was told that reference to Escorts could be made only upon giving in writing his desire for such reference on account of his family circumstances and he shall have to further admit in writing to claim only the expenses that would be incurred in the event of his treatment at Jaipur. The petitioner has alleged that looking to the situation he was in, he had no option and submitted the application dated 18.07.2000 (Annex.3) to the said Dr.R.K.Madhok for reference to the Escorts Heart Institute, New Delhi but stated that he was making such application with reference to the angiography report dated 12.07.2000. The petitioner has pointed out that an order dated 20.07.2000 (Annex.4) was issued
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Kifayat Hussain vs State & Ors on 30 June, 2008

recommending his case to the Escorts Heart Institute but in the said order it was specified that the facilities being available at SMS, financial entitlement would be that of SMS Hospital, i.e., Rs.50,000/- only. According to the petitioner, upon his visiting Escorts Heart Institute when he was again subjected to angiography on 01.08.2000, his apprehension came true because in such angiography, three blockages in coronary artery were found; and then, he was treated for the clot that had developed during the course of angiography at Jaipur; and, on the basis of angiography at Escorts, he was subjected to three coronary artery bypass grafting and was discharged from the Hospital 4 on 14.08.2000 (Discharge Summary Annexure-5). According to the petitioner, the Escorts Heart Institute, New Delhi raised a bill of Rs.2,10,400/- but on his request, while granting subsidy of Rs.45,400/-, charged an amount of Rs.1,65,000/- (Bill Annexure-6). The petitioner has pointed out that after complete recovery, he submitted a representation to the Principal Secretary, Department of Finance, Government of Rajasthan, Jaipur on 25.11.2000 (Annex.7) through the Collector, Banswara making a request for payment of the remaining amount of Rs.1,15,000/- in addition to Rs.50,000/- paid to him to meet the expenditure incurred in connection with his bypass surgery at New Delhi; that the District Collector recommended his case for grant of medical reimbursement to the tune of Rs.1,65,000/- on 12.04.2001 (Annex.8); but, under the impugned communication dated 25.06.2001 (Annex.9), his case for grant of medical reimbursement to the tune of Rs.1,65,000/- has been turned down. The petitioner has averred that the grant of medical reimbursement to the employees of the State Government is governed by the Rules of 1970; that Rule 7 thereof provides for treatment of a disease for which treatment is not available in the State; and that Escorts has been notified as one of the referral Hospitals under sub-rule (3) of Rule 7 of the Rules of 5 1970. The petitioner has further submitted that the expression ''a disease for which treatment is not available in any Government Hospital in the State'', as mentioned in Rule 7(1) of the Rules of 1970 should be treated to mean that the disease is the one for which proper treatment is not available; and has contended that in respect of open heart surgery, 'proper' treatment facility is not available in the State of Rajasthan. According to the petitioner, the action of the respondents in rejecting his application for grant of medical reimbursement in respect of expenditure incurred by him in relation to the open heart surgery at Escorts Heart Institute, New Delhi is illegal because under Rule 7 of the Rules of 1970, a Government servant who is suffering from a disease for which treatment is not available in any Government Hospital in the State is entitled to reimbursement of the expenditure incurred by him provided that he has undertaken treatment at the Hospital or Institute mentioned in Appendix 11. Further, according to the petitioner, it shall be deemed that he was suffering from the disease for which he could not have been treated in Government Hospital in the State because at SMS neither angiography was conducted properly nor diagnosis was correct; that he suffered clot in the right 6 femoral artery on account of improper angiography conducted at SMS; that in the angiography conducted at SMS, two blockages in coronary artery were stated whereas upon his examination at Escorts, it was revealed that result of angiography conducted at SMS was not correct inasmuch as he was suffering from three blockages. According to the petitioner, had he been operated at Jaipur, one blockage would have gone untreated and could have had disastrous consequences. The petitioner maintains that upon apprehension of not receiving proper treatment at SMS, Jaipur, he had asked for examination at Escorts Heart Institute that is available in the country and is the approved one too; that it was his right of self-preservation and he was entitled to exercise such right by virtue of Article 21 of the Constitution of India and having been treated at one of the notified institutions under Rule 7(3) of the Rules of 1970, he could not be denied reimbursement of
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Kifayat Hussain vs State & Ors on 30 June, 2008

the expenditure incurred by him in the said Institute. In relation to his undertaking in writing, the petitioner has averred that at the relevant time, he was suffering from acute heart problem and had serious doubts about the medical facilities available in Rajasthan; that he could not have put his life into peril by getting operated at Jaipur; and that in the circumstances, his undertaking being not of free will but 7 obtained under duress, remains unconscionable and of no adverse effect. Similarly, according to the petitioner, the condition as imposed in the order dated 20.07.2000 remains illegal, arbitrary and unreasonable. The respondents Nos.1 and 2, the State of Rajasthan and the Principal, SMS Medical College, Jaipur in their reply to the writ petition have taken preliminary objection that the petition involves disputed questions of fact that cannot be decided in writ jurisdiction. In relation to the averments in the writ petition, while not disputing the facts about the petitioner having been treated at RNT Medical College, Udaipur and at SMS Hospital, Jaipur, the respondents have averred that petitioner's coronary angiography on 12.07.2000 revealed two vessel disease (Cx 100% & LAD 80%). The respondents have elaborated that there are three major arteries in the heart viz., Right Coronary Artery, Circumflex Artery and LAD; and, depending upon the involvement of these three arteries, a patient is labelled as to be suffering from single vessel, two vessel, or three vessel disease. If one major artery is blocked and its sub-branches are also blocked, the category remains as single vessel disease. The respondents have alleged that the petitioner was trying to confuse the two aspects about his having two vessel disease and having had three grafts. With reference to the discharge slip of the petitioner from Escorts, 8 the respondents have pointed out that the petitioner was indeed found having two vessel disease; and maintain that the petitioner had 100% block in circumflex artery and 80% block in LAD. It has been contended that how many grafts are to be put in a particular case is finally decided by the surgeon on the table; and that angiography of SMS never mentioned the number of grafts needed. It has also been pointed out that the petitioner has not enclosed the copy of angiography report of Escorts Heart Institute. While stating that coronary angiography is being done at SMS regularly, safely and with the results comparable with any Centre in the world, the respondents maintain that angiography and treatment of such patient is available in SMS and have denied that petitioner was suffering from any disease for which he could not have been treated in the Government Hospital in the State. It has also been submitted that there was no basis for the petitioner making allegation of a clot having developed in his right femoral artery as a result of angiography conducted at Jaipur; and it has been pointed out that such a clot could develop if the patient does not keep his concerned leg immobile for eight hours following angiography. Further, according to the respondents, in the discharge slip of Escorts, nothing has been mentioned about any specific surgery or intervention on the said femoral right 9 artery at New Delhi and it has been pointed out that at the time of discharge, following coronary angiography at Jaipur, all the peripheral pulses of the petitioner were normal. While denying the allegations of any suggestion having been made to the petitioner to give in writing about the family circumstances for the purpose of reference to Escorts, the respondents have submitted that the patient is referred outside the State for treatment and is given reimbursement at the rate of All India Institute of Medical Sciences, New Delhi if it is considered that treatment of said ailment does not exist in Rajasthan. With reference to the application submitted by the petitioner (Annex.3), it is alleged that the petitioner voluntarily submitted the application for being referred to Escorts; and upon the said application, a panel of three doctors was constituted to examine the case of the petitioner and the panel recommended on 20.07.2000 that the petitioner requires coronary angiography bypass surgery, facilities whereof were available in Rajasthan and the approximate expenditure involved was Rs.50,000/- but, as the patient and his family wanted the same to be performed at Escorts, the panel recommended for permission to go for treatment as per the request but then, financial entitlement would remain that of SMS Hospital, Jaipur.
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Kifayat Hussain vs State & Ors on 30 June, 2008

The respondents maintain that Rule 7 of the Rules of 10 1970 is neither illegal nor arbitrary nor violative of Articles 14 and 21 of the Constitution of India. The respondents submit that adequate provision for securing health for the citizens of the State as well as the employees is available in the State; and that only because the petitioner somehow gathered the impression that he would not get adequate treatment within the State, it cannot be the reason enough for him to claim reimbursement for the treatment taken. The respondents maintain that there is no difference of opinion between the angiography report of SMS Hospital and Escorts Hospital; that SMS angiography report does not mention the number of grafts to be put on the patient for that is decided by the surgeon before and during surgery; that the number of grafts were not discussed with the petitioner at Jaipur and he was never told that only two grafts were needed. It is also submitted that the petitioner is not competent to judge the professional skills of the doctors at SMS; and that not a word has been expressed adversely by the Escorts in relation to the reports of SMS in the discharge ticket. The petitioner has filed a rejoinder with the submissions that question of fact raised in the writ petition could be determined on the basis of affidavits and the cause of the petitioner needs consideration by this Court. It is reiterated that angiography conducted at SMS did not give out correct 11 results and did not point out exact number of blockages and this aspect, according to the petitioner, is fortified from the fact that doctors at Escorts were not convinced with the correctness of angiography of SMS and, therefore, did not operate the petitioner on the basis of such angiography and another angiography was conducted at Escorts. The petitioner would maintain that the angiography conducted at SMS was found incorrect in the angiography conducted at Escorts and further that angiography at SMS resulted in a clot in his right femoral artery which could have resulted in amputation of leg had he not been timely admitted to Escorts. It has been denied that category of blockage remains that of one category even when there are more than one blockages and in this regard, the petitioner has posed a question as to where the third blockage has at all been shown in the angiography diagram dated 12.07.2000 even if the third blockage was in a sub- artery? According to the petitioner, the fact that he was administered bypass surgery with three grafts clearly goes to show that there were three blockages and the same were not located in the angiography conducted at Jaipur. It is also denied that the surgeon decides the number of grafts on the table and, the petitioner contends, such decision is required to be taken well in advance and is taken on the basis of angiography report. 12 The petitioner has pointed out that so far angiography report at Escorts is concerned, a soft copy has not been made available but hard copy of the same in the form of CD has been given and he was prepared to submit the same before the Court. In relation to Rule 7, the petitioner submits that such rule contemplates level of facilities of treatment available in the State and the level of facilities available at Jaipur being not of the same standard which is available in Escorts, he is entitled to reimbursement of the expenditure incurred by him at Escorts. The petitioner contends that availability of treatment as contemplated by Rule 7 of the Rules of 1970 means availability of treatment in the perfect and specialised manner and a person cannot be subjected to experimentation as was proposed to be done by the doctors at Jaipur. The petitioner has questioned the limitation imposed on reimbursement while referring to reimbursement of MLAs for getting bypass carried out abroad, has further referred to certain newspaper reports and has alleged that serious doubts were raised concerning administration of treatment to the former Governor of Rajasthan. According to the petitioner, he was under a serious threat to life had he undergone bypass surgery at Jaipur and in such a situation, the treatment would be deemed to be not available in the State within the meaning of Rule 7 of the Rules of 1970. 13 Learned counsel for the petitioner referred to the fact situation of the case and submitted that the petitioner had to go to Escorts in the act of self-preservation when the facilities at SMS were not found satisfactory.
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Kifayat Hussain vs State & Ors on 30 June, 2008

According to the learned counsel, when neither angiography was proper nor its report was correct, the petitioner could not have left himself to be made a subject of experimentation and when he could not have expected them to treat properly, it was reasonable for the petitioner to leave SMS and to go to Escorts for proper and specialised treatment. Learned counsel pointed out that even the femoral artery blockage occurred because of fault in angiography at SMS and had the petitioner not been adequately treated at Escorts, he would have even suffered loss of his leg. Learned counsel referred to Rule 7 of the Rules of 1970 and submitted that for its true import, the expression 'a disease for which treatment is not available in any Government Hospital in the State' cannot be read literally and so far 'treatment' is concerned, it means proper, adequate and specialised treatment; and else the Rule is rendered unconstitutional and is hit by Article 21 of the Constitution of India. Learned counsel has referred to and relied upon the decisions in Smt. Harbir Kaur Vs. State of Rajasthan and others: 2004 (4) WLC (Raj.) 865; Laxman Taneja Vs. The State of Rajasthan and others: 2005 (3) WLC (Raj.) 451; State 14 of Punjab and others Vs. Mohinder Singh Chawla etc.: AIR 1997 SC 1225; Surjit Singh Vs. State of Punjab and others: (1996) 2 SCC 336; B.L.Gaur Vs. Chief Secretary and others: 2007 WLC (Raj.) UC 469; Shankerlal Vs. State of Rajasthan and others: 2000 (3) RLR 596; and Kailash Prasad Gupta Vs. State of Rajasthan and others: 2005 (2) RLR 436. Learned Government Counsel has vehemently opposed with the submissions that the writ petition essentially raises disputed questions of fact about the correctness of the result of angiography and about the medical facilities available at SMS and such a dispute cannot be gone into in the writ petition. Learned counsel further submitted that the State cannot be forced to provide reimbursement of every kind of expenditure incurred by an employee on his treatment and, in the true operation of the rules, it has to be certified by the Principal of Medical College that treatment of a particular disease is not available in any Government Hospital in the State and that it is considered absolutely essential for recovery of the patient to have him treated at a Hospital outside the State. Learned counsel submitted that in the present case, the petitioner has voluntarily chosen to take the treatment at Escorts that has not been denied to him but even at the time of allowing his application, it was made clear that his entitlement would only be of expenditure at SMS i.e., Rs.50,000/- and the 15 petitioner is not entitled to claim reimbursement of the entire amount spent by him at Escorts. Learned counsel has referred to and relied upon the decisions in State of Punjab and others Vs. Ram Lubhaya Bagga and others: (1998) 4 SCC 117; The State of Rajasthan and others Vs. Syed Manzoor Ali: 2006 WLC (Raj.) UC 704; Anil Kumar Surolia Vs. The State of Rajasthan and others: 2005 (3) WLC (Raj.) 396; Khuman Singh Mehta Vs. State of Rajasthan and others: 1996 WLC (Raj.) UC 61; and Punjab State Electricity Board and another Vs. Jasbir Singh: AIR 1999 SC 979. Having heard learned counsel for the parties, having scanned through the record, and having given anxious consideration to the matter, this Court is clearly of opinion that the petitioner is not entitled to the relief as prayed for and this writ petition deserves to be dismissed. Before proceeding further, apposite it shall be to refer to Rule 7 of the Rules of 1970 and the fact situation with the ratio of the decisions cited by learned counsel for the parties. Rule 7 of the Rules of 1970 reads as under:"7. Treatment of a disease for which treatment is not avail- able in the State:(1) A Government servant and the members of his family suffering from a disease for which treatment is not avail- able in any Government Hospital in the State shall be enti- tled to medical attendance and treatment to the extent in- dicated in Sub-rule (2) of this rule in a Hospital/Institution outside the State recognised by the Government, provided that it is certified by the Principal of a Medical College/Di- rector of Medical & Health Services on the basis of opinion 16 of the Authorised Medical Attendant to the effect that the treatment of a particular disease from which the patient is suffering is not available in any Government hospital in the State and it is considered absolutely essential for the re- covery of the patient to have treatment at a hospital out- side the State.
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Kifayat Hussain vs State & Ors on 30 June, 2008

(2) The following charges/expenses shall be reimbursable:(a) Cost (including Sales Tax) of Allopathic Drugs, Medicines, Vaccines, Sera or other therapeutic substances reimbursable under these rules. (b) Sums actually paid to the Hospital/Institution on ac- count of medical attendance and treatment including charges for surgical operations and ordinary nursing facili- ty. (c) Travelling allowance for journey by rail/road from duty point at the station at which the patient falls ill to the place of treatment outside the State and back to a single fare of the class to which his classification entitles him under Ra- jasthan Travelling Allowance Rules. Such travelling al- lowance shall also be admissible for an attendant, if the Authorised Medical Attendant certifies in writing that it is unsafe for the patient to travel unattended and that an at- tendant is necessary to accompany the patient to the place of treatment and back. (3) The facility of medical attendance and treatment in the type of cases mentioned in Sub-rule (1) can be had at any of Hospitals/Institutions Mentioned in Appendix 11. (4) For the purpose of reimbursement, the original receipts issued by such Hospital/Institutions and vouchers of medicines etc. shall be countersigned by the Authorised Medical Attendant of Government Hospital on whose ad- vice the treatment outside the State was undertaken.'' Taking up the decisions cited by the learned counsel for the petitioner, noticeable it is that in the case of Surjit Singh (supra) the employee had undergone open heart surgery in England without subjecting himself to medical examination as per the policy of the Government. The Hon'ble Apex Court noticed that the employee was claiming reimbursement at the 17 rates applicable in Escorts; and found it fair and just that he be paid at the rates admissible as per Escorts that was one of the designated Hospitals. The Hon'ble Court held that self preservation of one's life is the necessary concomitant of the right of life enshrined in Article 21 of the Constitution, fundamental in nature, sacred, precious and inviolable; and after observing that the appellant had a right to take steps in self-preservation, the Hon'ble Court said,- '12.......He did not have to stand in queue before the Medical Board, the manning and assembling of which, barefacedly, makes its meetings difficult to happen. The appellant also did not have to stand in queue in the government hospital of AIIMS and could go elsewhere to an alternative hospital as per policy. When the State itself has brought Escorts on the recognized list, it is futile for it to contend that the appellant could in no event have gone to Escorts and his claim cannot on that basis be allowed, on suppositions." In Mohinder Singh Chawala (supra), such kind of cases were before the Hon'ble Supreme Court wherein the facility of the requisite treatment was not available in the State Hospitals of Punjab and under prior or ex facto permission of the Medical Board the employees had had their treatment in other Hospitals. However, while granting reimbursement for the actual expenses incurred, the bills for room rent paid to the Hospitals were rejected as inadmissible. The writ petitions filed by the employees succeeded before the High Court and the Government was directed to make payment of the amount of 18 room rent paid. It was contended before the Hon'ble Supreme Court by the appellant-State that the Government had taken decision not to allow reimbursement of expenses on account of diet, stay of attendant and stay of patient in Hotel/Hospital and permission was given subject to the above decision and, therefore, the High Court was not right in directing the Government to bear the expenses for such stay in the Hotel/Hospital. The Hon'ble Apex Court rejected the contention of the appellant State and held in the respective cases as under:".... It is an admitted position that when specialised treatment was not available in the Hospitals maintained by the State of Punjab permission and approval having been given by the Medical Board to the respondent to have the treatment in the approved hospitals and having referred him to the AIIMS for specialised treatment where he was admitted, necessarily, the expenses incurred towards room rent for stay in the hospital as an
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Kifayat Hussain vs State & Ors on 30 June, 2008

inpatient are an integral part of the expenses incurred for the said treatment. ... .... .... ".....It is incongruous that while the patient is admitted to undergo treatment and he is refused the reimbursement of the actual expenditure incurred towards room rent and is given the expenditure of the room rent chargeable in another institute whereat he had not actually undergone treatment. Under these circumstances, the contention of the State Government is obviously untenable and incongruous. We hold that the High Court was right in giving the direction for reimbursement of a sum of Rs. 20,000 incurred by the respondent towards the room rent for his stay while undergoing treatment in Escorts Heart Institute, New Delhi." In the case of Shankerlal, the employee was at Delhi on leave and his wife suffered heart problem; she was 19 immediately taken to Escorts that is recognised Hospital by the State Government where open heart surgery was performed on her. The State Government was held liable to reimburse the expenses so incurred at Escorts without insisting for certification that such facility was not available in Rajasthan. The Hon'ble Division Bench of this Court said,- ''32. The ratio of these decisions fully applies to the facts of the present case wherein while the petitioner was in Delhi on leave, his wife suffered heart problem and was immediately taken to Escorts Heart and Research Centre, Delhi, which is recognised Hospital for specialized treatment by the State Govt., where her open heart surgery was made. Thus, it is clear that Escorts Heart and Research Institute is one of the recognised Hospital for specialized treatment, there is no escape from the conclusion that the State Govt. is liable to reimburse such expenses without insisting for certification from the Authorised Medical Attendant or other Competent Officer, when such a facility was not available in the State of Rajasthan. The claim could not be denied on the ground that because the petitioner instead of waiting in queue and spending time in seeking a clarification from a local hospital has decided to act with promptitude in the interest of self preservation by taking his wife immediately to an Institute approved by the State Govt.'' Similarly, the decisions of this Court in the cases of Laxman Taneja, Kailash Prasad Gupta, and B. L. Gaur deal with the cases where the patient concerned was required to take the treatment at a particular Hospital in the wake of emergent situation; and this Court expressed the desirability of relaxation in such matters of emergency. In Laxman Taneja the Court pointed out the fact situation and said,- "22. It is admitted position that the wife of the petitioner has undergone an emergency Re-do MVR operation on 4.2.2002, as is evident from the Certificate (Annexure 3), issued by Dr. H.S. Bedi, Senior Consultant Cardio Vascu- 20 lar & Thoracic Surgery, Fortist Heart Institute, Mohali, Pun- jab. In a welfare State, the welfare of the people is frustrat- ed just because of bureaucratic approach of the concern- ing authorities. A person having put in whole life in the ser- vices of the State till he attains the age of superannuation always require human consideration. Technicalities of rules and regulations are not required to be followed just in a mechanical manner so as to frustrate the very purpose of the Scheme. Each case has to be examined on its own facts before taking any final decision. While granting such benefits under the beneficial schemes, the essential, immediate and timely medical assistance are the primary considerations, while the financial constraints are always secondary considerations. 23. It is pertinent to mention here that pathetic conditions of Government hospitals is well known and the same has been admitted by the Government machinery also time and again. Under the circumstances, when a person explains reasons for getting the treatment in a private hospital, the reimbursement should not be denied only on some hyper technical grounds. The Government must give relaxation in such matters." In Kailash Prasad Gupta, again, this Court found it to be a case of emergency and said,"5. In the present case also, the petitioner has explained the emergent situation and circumstances under which he had to rush his wife to a private hospital. However, as the ill fate would have it, in spite of the best efforts, the life could not be saved. Presently the petitioner is not claiming any compensation for the death of his wife,
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Kifayat Hussain vs State & Ors on 30 June, 2008

but has only asked for reimbursement of the expenses incurred by him on the medical treatment given to his wife under a scheme for which he has been contributing during his service tenure. It may be pertinent to mention here that pathetic conditions of Government hospitals is well known and the same has been admitted by the Government machinery also time and again. Under the circumstances, when a person explains reasons for getting the treatment in a private hospital, the reimbursement should not be denied only on some hyper technical grounds. The Government must make relaxation in such matters under exceptional circumstances.'' In the case of Harbir Kaur (supra), the facts were that the petitioner's husband Jagpal Singh, while holding the post 21 of President, District Consumer Redressal Forum, Dausa in the year 2000, was suspected to be a severe heart patient; he was examined by the expert Cardiologist of SMS Hospital, who advised him to undergo heart surgery; the Medical Board stated in its report that his three vessels required grafting, therefore, he needed CABG operation; and it was further recommended that although this facility was available in the State of Rajasthan, yet he be referred to All India Institute of Medical Science, New Delhi or Escorts Hospital, New Delhi as he wanted to be operated in New Delhi. The approximate cost of operation in SMS Hospital was shown to be Rs. 50,000/- and expenses of an attendant as per rule; Jagpal Singh received the communication from the Principal, SMS Medical College and Controller of the Attached Hospitals, Jaipur wherein it was stated that he could go to Escorts and thereafter, he was admitted to Escorts for Coronary Angiography on 20.05.2000 and was discharged on 21.05.2000; however, since immediate surgery was required, he was again admitted on 29.05.2000 to Escorts where CABG operation was performed and he was discharged on 12.06.2000. Shri Jagpal Singh during his lifetime made several representations to the respondents seeking medical reimbursement of the amount paid towards such surgery but no heed was paid; and after his demise, the petitioner filed the 22 writ petition with prayers for mandamus regarding medical reimbursement of Rs. 2,11,200/- and to declare Rule 7 of the Rules of 1970 unconstitutional. The respondents submitted reply to the writ petition that the Medical Board after examining Jagpal Singh observed in its report that the treatment required by him was available in the State of Rajasthan but since the patient wanted to be operated in New Delhi, he could be referred to New Delhi AIIMS/Escorts; that Jagpal Singh wrote to the Principal SMS Medical College Jaipur that since doctors at Escorts advised for immediate surgery his case could be referred to the Escorts. Therefore, Jagpal Singh was entitled to only such amount of expenses that would have been incurred had he been treated in SMS, Jaipur because as per Rule 7 of the Rules of 1970, reimbursement of expenses as incurred on treatment in Medical Hospitals/Institutions outside the State was permissible only in respect of Hospitals enumerated in Appendix 11; and Escorts was not so included. The Hon'ble Division Bench observed in relation to rule 7 of the rules of 1970 that,"5. A look at Rule 7 goes to show that Government servant and the members of his family suffering from a disease for which treatment is not available in any Government Hospital in the State of Rajasthan shall be entitled to medical attendance and treatment outside the State of Rajasthan in the Hospital/Institute recognised by the State Government. If this rule is religiously followed then no Government Servant and the members of his family shall be entitled to medical attendance and treatment outside the State of Rajasthan. Would any Hospital admit that particular disease could not be treated in Rajasthan? The 23 answer shall always be in negative. The word 'treatment' used in Rule 7, in our opinion implies treatment by 'specialised Hospital'. Taking the facts of the case, the Hon'ble Division Bench observed that since treatment by specialised Hospital was required, Jagpal Singh in order to avert threat to life asked the Medical Board to recommend his case for surgery in Escorts. The Hon'ble Division further referred to the cited decisions and did not agree with the submissions made on behalf of the State, inter alia, for the reasons that under the office memorandum 21.01.1989 the Government of Rajasthan had identified and recognised certain Hospitals as referral Hospitals
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outside the State having facilities for specialised treatment, and Escorts was one of them. The Court also noticed the facts that some other similarly situated persons were indeed allowed reimbursement of expenditure for their Angioplasty performed at Escorts. Thereafter, the Court noticed another factor that the patient was a diabetic and there was no department of Endocrinology in SMS Hospital, Jaipur; and held,18. In the opinion of Medical Experts diabetes is one of the causes of heart ailment. Unless diabetes is controlled no surgery can be performed. It is unfortunate that there is no full fledged department of Endocrinology in SMS Hospital Jaipur. Article 21 of the Constitution casts obligation on the state to provide right to life to its citizens. It is the primary duty of the State to secure health to its citizens. In order to make the right to life meaningful the stale has to employ best talents and tone up its administration to give effective contribution. Since right to life is one of most sacrosanct and valuable rights of a citizen and equally sacrosanct sacred obligation of the State every citizen looks towards 24 the state for it to perform his obligation with top priority including by way of allocation of sufficient funds. One can only express pity to learn that there is no need of full fledged department of Endocrinology in SMS Hospital Jaipur since Diabetic clinic is being run for the last four decades. We do not want to say more in this regard. It is for the State of Rajasthan to decide whether it wants to go with oldest diabetic clinic or intends to open full fledged department of Endocrinology in SMS Hospital Jaipur. Looking to the situation prevailed in the SMS Hospital Jaipur if Jagpal Singh, a severe diabetic patient, got himself operated at Escorts, his decision was perfectly justified.'' The relevant part of the relief granted and directions issued by the Hon'ble Division Bench in Harbir Kaur read as under:(i) We hold that claim of the petitioner for medical reimbursement is valid and justified and direct the respondent State to make payment of a sum of Rs. 2,11,200/- to the petitioner within one month from the date of receipt of the copy of this order; (ii) We direct that the word 'treatment' incorporated in Rule 7(1) of 1970 Rules shall imply the words 'specialised treatment'. So far the decisions cited by learned counsel for the respondents are concerned, Jasbir Singh's case (supra) related with costs of imported drug and the Hon'ble Supreme Court found that reimbursement was permissible only if it were a life saving drug and the chronic disease of the patient which was attributed to the disease of pituitary gland was held to be not a life threatening one and norditropin injunction prescribed for such treatment was held not a life saving drug. In the case of Ram Lubhaya Bagga (supra) the Hon'ble Supreme Court considered the question of scale at which reimbursement was permissible when question was posed 25 about the validity of revised policy of the Government of Punjab dated 13.02.1995 because according to the previous policy, reimbursement of medical expenses charged by the designated Hospitals like Escorts were admissible but under the new policy, reimbursement was restricted to the rates fixed by the Director, Health and Family Welfare, Government of Punjab. While upholding the new policy, the Hon'ble Supreme Court allowed reimbursement to the extent of the rates of All India Institute of Medical Sciences. The Hon'ble Supreme Court pointed out that right of a citizen to live under Article 21 castes obligation on the State that is further reinforced under Article 47; and it is for the State to secure health to its citizen as its primary duty. However, at the same time, the Supreme Court pointed out, no State or Country can have unlimited resources to spend on any of its projects and that is why it only approves its projects to the extent feasible. The same holds good for providing medical facilities to its citizens including the employees. The Hon'ble Court said,''29. No State of any country can have unlimited resources to spend on any of its projects. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizens including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finances
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Kifayat Hussain vs State & Ors on 30 June, 2008

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. 26 ...... ..... ...... "31. .....We having considered the submission of both the parties, on the aforesaid facts and circumstances, hold that the appellant's decision to exclude the designated hospital cannot be said to be such as to be violative of Article 21 of the Constitution. No right could be absolute in a welfare State. A man is a social animal. He cannot live without the cooperation of a large number of persons. Every article one uses is the contribution of many. Hence every individual right has to give way to the right of the public at large. No Fundamental Right under Part III of the Constitution is absolute and it is to be within permissible reasonable restriction. This principle equally applies when there is any constraint on the health budget on account of financial stringencies. But we do hope that Government will give due consideration and priority to the health budget in future and render what is best possible.'' In the case of Khuman Singh Mehta (supra) the prayer for reimbursement of the expenditure incurred at Escorts for by-pass surgery was denied finding the writ petition involving disputed questions of fact and the petitioner having not obtained any certificate that such surgery was not available in any Government Hospital of the State of Rajasthan nor having produced any evidence to prove that he was not in a position to come to Jaipur from Delhi to obtain such a certificate. In the case of Anil Kumar Surolia (supra) the petitioner, a Judicial Officer, while visiting his brother in the State of Gujarat suffered a heart attack; and was treated at Krishna Heart Institute in the State of Gujarat. Thus, it was found that he required immediate treatment though it was mentioned that such treatment was available in SMS Hospital at Jaipur. This Court found the petitioner entitled to medical reimbursement if 27 his treatment elsewhere was necessitated on account of circumstances beyond his control. However, the Division Bench observed,''7. Before we may part with this order, we would like to mention that the 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 institutions." In the case of Syed Manzoor Ali (supra), another Division Bench of this Court has considered the ratio of Anil Kumar Surolia (supra) and so also of Surjit Singh and Ram Lubhaya Bagga (supra) and held the petitioner entitled to reimbursement of the expenses at the rate prescribed for Government Hospitals for treatment of his wife taken at a private Hospital. The Court said,''14. No doubt, the respondent chose to his wife treated in a private hospital. Had he received treatment in a government hospital, say SMS Hospital, Jaipur, he would have indisputably been entitled to reimbursement of expenses. We see no reason why following the ratio of the decisions in Surjit Singh, Ram Lubhaya Bagga and Mohan Lal Jindan, he should be denied reimbursement at the rates applicable in the government hospital merely because he preferred to get the treatment in a private hospital. The foundational facts of the respondent's claim being not in dispute, we are of the view, the respondent should be allowed reimbursement of expenses incurred by him at the rate prescribed for government hospitals for treatment of his wife.'' Taking the case of the present petitioner, it is noticed in the first place that after his angiography at SMS on 28 12.07.2000, the petitioner was found suffering from coronary artery disease and was advised coronary artery bypass surgery. After receiving such advice, the petitioner stated in his application dated 18.07.2000 that,
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Kifayat Hussain vs State & Ors on 30 June, 2008

" Angiography 12/7/2K "CORONARY ARTERY BYPASS SURGERY" '( * + -. / ( + / , + 7 ESCORT HEART INSTITUTE, NEW DELHI 9 7 / / 7 SMS ; //-+ / + / +, + . - 9 : -. (Refer) " The aforesaid application makes it more than evident that after he was advised bypass surgery by SMS, the petitioner expressed his desire to have himself operated at Escorts Heart Institute, New Delhi because of his family circumstances and for most of his other relatives residing at Delhi. The petitioner clearly gave out the undertaking to seek reimbursement only of the amount that would have been incurred for his diagnosis/ treatment/surgery at SMS, Jaipur and to foot the remaining bill himself. The submission of the petitioner that such an application was given under duress and that he was asked to state so in his application and then only his case would be referred does not inspire confidence nor 29 such bald uncorroborated allegation could be accepted particularly looking to the contents of the application Annexure-3. Noticeable it is that according to the petitioner, he developed cardiac problem in the month of September 1999, was treated at RNT Medical College, Udaipur for quite some time and then was referred to SMS on 15.06.2000. Angiography at SMS was carried out on 12.07.2000 and he was advised bypass surgery. The petitioner submitted the said application (Annex.3) six days later, only on 18.07.2000, and the order thereupon was issued on 20.07.2000. The discharge summary of the Escorts Heart Institute, New Delhi (Annex.5) shows that the petitioner was admitted at Escorts only on 31.07.2000. From the facts and surrounding circumstances of the case, the only available inference is that the said application had been a result of the petitioner's own conscious decision to prefer Escorts to SMS. With reference to his application, the petitioner was informed by the communication dated 20.07.2000 (Annex.4) of sanction having been accorded to go to Escorts in the following terms:''Mr.Kifayat Hussain Khaderbux, U.D.C. Collectraite, Banswara to go to Escort Heart Institute and Research Centre, New Delhi for CABG as he has been suffering from CAD. Since these facilities are available in S.M.S. Hospital, Jaipur so the financial entitlement will be that of S.M.S. Hospital i.e. Rs.50,000/- (Rupees fifty thousand only).'' 30 The petitioner having voluntarily made the application to leave SMS for the purpose of treatment at Escorts; and having taken such treatment under the specific knowledge about the order dated 20.07.2000, of restriction of entitlement to the expenditure referable to SMS, is not entitled to turn around and now claim
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reimbursement of the expenditure incurred at Escorts. The application as moved by the petitioner on 25.11.2000 after having recovered from ailment could only be rejected as an afterthought. Then, the allegations as levelled by the petitioner regarding negligence at SMS, regarding inadequacy of facilities available at SMS, and regarding incorrectness of the report of SMS lead to serious disputed question of facts; and ordinarily this Court would not have entered into such questions in the writ jurisdiction; however, the petitioner has maintained in his rejoinder that such questions could be decided on the basis of material on record. Having regard to the circumstances of the case, when such allegations are probed into with reference to the material available on record, this Court finds no cogent evidence that would substantiate the allegations of the petitioner; and the allegations remain more of a matter of his subjective viewpoint. 31 The petitioner has levelled the allegations in the representation Annexure-7 of his having been informed after admission at Escorts about negligence at SMS, Jaipur; however, such an assertion does not find any corroboration in the discharge summary of Escorts, produced by the petitioner as Annexure-5. Nothing has been stated in the discharge summary of Escorts that could even be remotely indicative of the fact that there had been a definite conclusion at Escorts about any negligence or want of proper diagnosis or treatment at SMS. The petitioner has broadly levelled two allegations in respect of so-called negligence at SMS: First, according to the petitioner, femoral artery blockage resulted from angiography at SMS. Such is too far stretched an allegation without any corroborative material; and again, the discharge summary of Escorts (Annex.5) does not indicate that femoral artery blockage had been the result of angiography at Jaipur. The petitioner has repeatedly emphasised on the second allegation that angiography at SMS stated only two blockages whereas in fact, he had three blockages in the coronary arteries and three grafting were done on 08.08.2000. From the material whatever available on record, this Court is unable to find any cogent evidence in proof of the fact that the angiography 32 report of SMS was incorrect or sub-standard. Yet again, nothing has been stated in the discharge summary of Escorts that report of SMS was not correct or wanting in specification nor the discharge summary (Annex.5) anywhere indicate that angiography report of SMS was in any manner contradicted by any other report of Escorts. In fact, no other angiography report of Escorts before CABG is indicated in the discharge summary and rather, only the report of SMS dated 12.07.2000 has been referred under the head 'INVASIVE CARDIOLOGICAL INVESTIGATIONS'. The petitioner does not appear correct while attempting to build up his entire case on the basis of three number of grafts carried out at Escorts with two number of blockages stated in the Angiography of SMS. The respondents have asserted in their reply that there had not been any infirmity in the angiography report of SMS and have pointed out there are three major arteries in the heart viz., Right Coronary Artery, Circumflex Artery and LAD; and depending upon the involvement of these three arteries, a patient is labelled as to be suffering from single vessel, two vessel and three vessel disease; and the petitioner having 100% blockage in coronary artery and 80% in LAD, his was a case of double vessel disease. This Court is unable to discard such clarifications of the respondents as totally baseless or incorrect. The respondents have also pointed out that the 33 number of grafts requisite for the petitioner was the aspect never discussed with him. Apart that there is no other angiography report of Escorts available on record, the discharge summary of Escorts (Annex.5) also states that petitioner's was a case of double vessel disease. Then, the fact that the report of SMS was made on 12.07.2000 and there had been a bit of time gap when other investigations were carried out at Escorts cannot be lost sight of. Even leaving this aspect aside and, if at all and at best, it be assumed that there had been some difference of opinion at Escorts, that would essentially be a case of two different medical opinions; but that would not by itself render the report of SMS totally useless or so wanting in specifications that it has to be discarded as an inappropriate report and thereby SMS has to be branded as the Hospital not having specialised
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Kifayat Hussain vs State & Ors on 30 June, 2008

treatment. In an overall view of the matter, this Court is satisfied that it was the petitioner's own desire and his subjective satisfaction to have himself treated at Escorts; and that has nothing to do with the correctness or otherwise of the diagnosis and the availability of facilities at SMS. Of course, the petitioner cannot be denied his choice in the act of self- preservation to have himself treated by the doctors and by institute he would prefer but then, as pointed out by the Hon'ble Supreme Court in Ram Lubhaya Bagga's case 34 (supra), the State cannot be forced to meet with entire of the expenditure which is chosen by an employee to be incurred. The provisions as contained in Rule 7 of the Rules of 1970 do not suffer from any vice of unconstitutionality. Even when the expression 'treatment' is read as 'specialised treatment', in the fact situation of this case, it cannot be assumed that specialised treatment of coronary artery bypass surgery requisite for the petitioner was not available at SMS, Jaipur. In the aforesaid view of the matter, this Court is clearly of opinion that the petitioner is not entitled for any relief in this writ petition. In relation to the decisions cited by learned counsel for the petitioner, it could at once be noticed that the decisions of this Court in Shankerlal, Laxman Tanjea, Kailash Prasad Gupta and B.L.Gaur, rendered in the given fact situation where the petitioner or his dependent took a particular treatment under the emergent situation at a particular Hospital, stand on an entirely different footing. The present case cannot be equated with such cases of emergencies. That the present one was not a case of such kind of emergency is borne out again from the fact that though the petitioner was referred from Udaipur on 15.06.2000, he got conducted angiography at SMS only on 12.07.2000; and even after taking orders on 35 20.07.2000 to go to Escorts, got himself admitted at Escorts only on 31.07.2000 and surgery was conducted on 08.08.2000. Of course, the fact that the petitioner was suffering from serious heart problem remains undeniable but then, in the context of the questions posed in the matter, his case cannot be equated with those cases where treatment had to be taken at a particular Hospital in the face of the exigencies of the situation. Here it is a case of the petitioner voluntarily and consciously going to Escorts from SMS of his own accord. Further, even if it were taken to be a case of some emergency, as per the ratio of Ram Lubhaya Bagga, Anil Kumar Suroliya and Sayed Manzoor Ali (supra), the entitlement of the petitioner shall remain that of reimbursement at the rates applicable in the Government Hospital, i.e., SMS. The decision in Mohinder Singh Chawla related with an entirely different question where the Government intended to deny room rent even while reimbursing other expenditure. The situation in Surjit was also different. Therein, the Government under its policy as circulated on 25.01.1991 and as explained on 08.10.1991 had pointed out having prepared the list of those diseases for which specialised treatment was not available in the Punjab Government Hospitals but was available in certain identified private Hospitals, both within and outside the State; and recognised those Hospitals for the 36 treatment of such diseases; and in relation to open heart surgery, Escorts was found one of such Hospitals duly recognised by the State. On facts, the said case has no application to the present set of facts because bypass surgery was available at SMS. Only the case of Harbir Kaur (supra) reaches somewhere near the contentions sought to be urged in this writ petition but does not clearly support the petitioner for the fundamental reason that therein the patient was found suffering from diabetes and this Court found that no full fledged Department of Endocrinology was available in SMS, Jaipur for treatment of diabetes; and held that without control of diabetes, the patient could not have been properly operated upon; and hence a severe diabetic patient when got himself operated at Escorts in preference to SMS, his decision was found justified. The petitioner has not been able to point out any situation of such kind where any part of requisite therapy or treatment qua him could not have been dealt with or tackled at SMS. As noticed above, it was the conclusion arrived by the petitioner himself that he would not get proper treatment at SMS and preferred Escorts. There is no quarrel with the petitioner's freedom of choice and preference of a particular Hospital for his treatment but then, for such an option, the 37
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petitioner cannot force the State Government to make payment of the expenditure whatever incurred. For the reasons aforesaid, this Court finds no merit in this writ petition. The writ petition fails and is, therefore, dismissed. However, in the circumstances of the case, there shall be no order as to costs. (DINESH MAHESHWARI),J. MK

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