HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 4 Case :- WRIT - A No. - 62430 of 2015 Petitioner :- Surendra Kumar Tayal Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Dhiraj Kumar Pandey Counsel for Respondent :- C.S.C. Hon'ble B. Amit Sthalekar,J.
Supplementary affidavit filed today is taken on record.
Heard Shri Dhiraj Kumar Pandey, learned counsel for the petitioner and Shri K.R. Singh, learned standing counsel for the respondents.
The petitioner is seeking quashing of the order dated 8.10.2015 whereby his claim for medical reimbursement of Rs.26,000/- has been rejected.
Briefly stated the facts of the case are that the petitioner undertook treatment in the Khanna Eye Hospital, Saharanpur where his eyes were operated in which he incurred medical expenses of Rs.26,000/-. It is stated that he was issued a medical certificate by the Khanna Eye Hospital which was also endorsed by the Superintendent in Chief of the S.B.D. Hospital, Saharanpur, Annexure-4 at page 26 of the writ petition. The claim of the petitioner has been rejected by the impugned order on the ground that the doctor in his certificate has not certified that the case of the petitioner was one of "emergency".
Learned counsel for the petitioner submitted that the petitioner has incurred expenses in the Khanna Eye Hospital and in terms of Rule 19(ka) of the U.P. Government Servant (Medical Attendance) Rules, 2011, (hereinafter referred to as the Rules, 2011) the Head of the Government Hospital/Ayurvedic/Unani and Homoeopathy or Incharge Medical Officer of Government Hospital/Superintendent would be the competent authority who will sanction any claim upto a maximum of Rs.50,000/-. He further submitted that Rule 13 of the Rules, 2011 contemplate treatment in a private hospital and therefore the claim of the petitioner in a private hospital, namely, Khanna Eye Hospital could not have been rejected.
Learned standing counsel on the other hand referred to the specific provisions of Rule 11 and 13 of the Rules, 2011 and submitted that Rule 11 of the Rules, 2011 contemplate treatment of a Government Servant in a private institution only if such treatment is ultimately necessary in cases of "emergency". Rule 11 and 13 of the Rules, 2011 read as under:
"11. Treatment in Urgency/Emergency. - A beneficiary is permitted to get treatment in a private hospital in urgent/emergent condition within State or outside. The cost of treatment shall be reimbursable at the rate of Sanjay Gandhi Post Graduate Institute of Medical Sciences and Research (SGPGIMS), Lucknow in case of treatment within the State or All India Institute of Medical Sciences, New Delhi for treatment outside the State provided :
(a) The treating doctor certifies the urgency/emergency.
(b) The patient informs the Head of Office as soon as possible but not later than thirty days from the date of commencement of treatment.
(c) In case of emergency, the expenditure on air ambulance shall also be admissible for reimbursement.
12. ...........................
13. Specialized treatment in private hospital. - (a) For the treatment of complicated and serious ailments for which medical facilities are not available at the Government hospitals or referring institutions, the treating doctor now below the rank of Professor or Head of the Department of referring institution may refer the patient to a private hospital or institution recognized by the State or Central Government for treatment and medical attendance.
(b) The reimbursement of the expenditure on treatment in such private hospital or institution shall be limited to the actual expenditure or the rate of SGPGIMS, Lucknow for treatment within State or the rate of the All India Institute of Medical Sciences (AIIMS), New Delhi for treatment outside the State whichever is less.
(c) The reimbursement of the expenses on such treatment or investigations the facilities for which do not exist in SGPGIMS, Lucknow or the All India Institute of Medical Sciences (AIIMS), New Delhi shall be made on actual basis provided the treatment is undertaken within the country."
He further submits that Rule 13 comes into play only if such emergency or immediacy of treatment occurs at a place where government servant is working where there is no government hospital or other government facility for the required treatment. Therefore before the government servant undertakes treatment in a private institution he has to first show that it is a case of emergency requiring immediacy of treatment and secondly that such treatment is not available in any government hospital or institution or dispensary where such emergency arises.
So far as the provision of Rule 19(ka) are concerned they only denominate the authority who is competent to sanction a medical claim up to a maximum of Rs.50,000/-. Therefore, the submission of the learned counsel for the petitioner that the medical certificate issued by the Khanna Eye Hospital has been endorsed by the Superintendent in Chief of S.B.D. Hospital, Saharanpur would be of little consequence inasmuch as before such claim can be endorsed or approved by the Superintendent in Chief of a Government Hospital he has to satisfy himself that the conditions for application of Section 11 and 13 of the Rules, 2011 are also present. As noted above Rule 11 of the Rules, 2011 clearly provides that treatment may be availed in a private hospital provided there is an emergency/immediacy of such treatment. Rule 13 further provides that such treatment can only be made in the case of complicated and serious ailment where such treatment in the government hospital/institution/dispensary and the place where such "emergency" arises, therefore for sanctioning of medical claim/reimbursement it is not the amount which is relevant but rather the circumstances in which such claim has arisen and in all such cases the provisions of Rule 11 and 13 which are mandatory would have to be complied with. The reason for the same are quite simple, namely, the State cannot be burdened with financial expenses which are far beyond its resources although the duty to provide medical aid and to ensure protection of life is a cardinal principle of Article 21 of the Constitution of India and the responsibility falls upon the State Government, but at the same time the financial constraints of the State has also be taken care of and keeping this in mind the Rules 2011 have been framed.
Therefore, considering the provisions of Rules 11 and 13 of the Rules, 2011 it is noticed that the medical certificate issued by the Khanna Eye Hospital even though endorsed by the Superintendent in Chief of S.B.D. Hospital, Saharanpur does not state that the condition of the petitioner was one of emergency requiring immediate treatment and secondly that such treatment for removal of cataract was not available in any government hospital in Saharanpur.
Learned counsel for the petitioner could not dispute that the Saharanpur has a reputed Civil Hospital and also a Medical College where such treatment of cataract was available but he could not explain as to whether the case of the petitioner was one of such emergency that he had to approach a private hospital for treatment.
It is equably notable that not a single medical certificate of civil hospital, Saharanpur or any other government hospital has been filed by the petitioner to show that he was taking regular treatment from such hospital and it was only when an emergency arose that he had to rush to the private hospital.
Learned counsel for the petitioner has referred to paragraph F of the medical certificate filed at page 25 of the writ petition and submitted that his case was referred by one Dr. Narendra Khanna for specialist consultation and necessary approval. Dr. Narendra Khanna, as the document itself discloses is the consultant eye surgeon of the Khanna Eye Hospital, which is a private hospital and therefore his reference becomes irrelevant in the circumstances. There is no reference of any government doctor on record to show that the petitioner was referred by a government doctor to the Khanna Eye Hospital for specialist consultation and treatment upon a consideration that such treatment was not available in the civil hospital, Saharanpur or in any other government hospital. Treatment in a private hospital is permissible, provided that such treatment is not available in the government hospital of the State, at the rate applicable in the S.G.P.G.I, Lucknow.
Learned counsel for the petitioner has referred to the decision of the Supreme Court in the case of State of Punjab Vs. Ram Lubhaya Bagga 1998 (4) SCC 117 wherein the Supreme Court referring to the medical rules of the State of Punjab has held that the medical treatment in a private hospital is permissible provided such treatment is not available in the government hospital of the State and even in the AIMS provided such treatment is not available in the State and has further held that the reimbursement of such expenses will be made at the rate applicable in the AIMS. In that case the respondent Ram Lubhaya Bagga sufferred from heart attack and was rushed to the Escorts Hospital for treatment. Therefore, in my opinion the said judgement has no application to the facts of the present case.
For the reasons stated above, I do not find any merit in the writ petition and the same is accordingly dismissed.
Order Date :- 7.12.2015 o.k.