Rajasthan High Court - Jodhpur

Smt. Sharda Sharma vs State Education And Ors on 15 December, 2023

Author: Pushpendra Singh Bhati

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:40941]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                            JODHPUR
             S.B. Civil Writ Petition No. 4531/2011

Smt. Sharda Sharma (Deceased) through LRs.
                                                                   ----Petitioner
                                    Versus
State Education & Ors.
                                                                 ----Respondent



For Petitioner(s)         :     Mr. R.S. Saluja
                                Mr. Bhavit Sharma
For Respondent(s)         :     Mr. Anil Kumar Gaur, AAG a/w
                                Mr. Salman Agha & Mr. Anupam Gopal
                                Vyas



      HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 28/11/2023 Pronounced on 15/12/2023

1. This writ petition has been preferred under Article 226 of the

Constitution of India claiming the following reliefs:

"It is, therefore, most humbly and respectfully prayed that this writ petition of the petitioner may kindly be allowed and by an appropriate writ, order or direction:-

(I) the impugned order dated 2.2.2011 (Annex.7) may kindly be quashed and set aside (II) that consequent to aforesaid, the respondents may kindly be directed to reimburse the petitioner to the extent expenses have been incurred by her in her medical treatment including the ambulance charges as claimed by petitioner.

(III) The petitioner may also be given the relief in consonance with the facts narrated and grounds taken in the memo of writ petition.

(IV) Writ petition filed by the petitioner may kindly be allowed with costs."

2. Brief facts of the case, as placed before this Court on behalf

of the original petitioner, who since deceased is represented

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through her legal representatives i.e. petitioners Nos.1/1 to 1/4,

are that the original petitioner stood retired from the service

under the Education Department on attaining the age of

superannuation in the year 1994. Thereafter, in the year 2009, the

original petitioner went on a pilgrimage alongwith some other old

ladies. During the same, she suffered a brain stroke and in such a

state of emergency, she was admitted in Combined Medical

Institute, Haridwar Road, Dehradun, wherefrom she was referred

by the authorities to Indraprastha Apollo Hospital, New Delhi and

taken to the same by ambulance, all while being in the state of

unconsciousness. The original petitioner remained hospitalized in

the hospital at New Delhi from 26.05.2009 till 02.06.2009.

2.1. Thereafter, the original petitioner was discharged and took

further treatment at Goyal Hospital and Research Centre Private

Limited, Jodhpur Subsequently, the original petitioner attained

fitness and submitted an application before the respondent

authority seeking reimbursement towards the expenditure

incurred on her treatment. However vide the impugned letter

dated 02.02.2011, the said was application was returned with a

reason that the doctor's certificate does not show that the original

petitioner was admitted for treatment in a serious emergency and

was thus, entitled to medical reimbursement only to the tune of

Rs.34,124/-. Aggrieved by the same, the present petition had

been preferred by the original petitioner, claiming the afore-

quoted reliefs.

3. Learned counsel for the petitioners submitted that the

original petitioner suffered a brain stroke and in such a situation of

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emergency was admitted to the nearest available hospital and was

further shifted to the Indraprasth Apollo Hospital, New Delhi via

ambulance while being unconscious the entire time, resultantly,

the original petitioner could not be admitted in a hospital in

Rajasthan, thus the impugned letter dated 02.02.2011 clearly

reflects an arbitrary action on the part of the respondents, insofar

as it states that the medical certificate issued to the original

petitioner did not reveal any case of emergency.

3.1. It was further submitted that Rule 7 of the Rajasthan Civil

Services (Medical Attendance) Rules, 1970 provides for treatment

of a disease for which treatment is not available in the State of

Rajasthan, and it was in view of this Rule that the impugned order

was passed since the original petitioner was not treated in a

Government Hospital.

3.2. It was also submitted that case of the original petitioner was

covered by the Rajasthan Civil Services (Medical Attendance)

Rules, 2008 and not by the Rajasthan Pensioners Medical

Concession Scheme, 1989, as claimed by the respondents.

3.3. Learned counsel in order to fortify his submissions placed

reliance on the following judgments/orders:

(a) Satyapal Singh v. State of Rajasthan & Ors. (S.B. Civil Writ

Petition No. 4678/2019 decided on 09/09/2022) by a Coordinate

Bench of this Hon'ble Court.

(b) Shiva Kant Jha v. Union of India (Writ Petition (Civil) No.

694 of 2015 decided on 13/04/2018) by the Hon'ble Apex Court.

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Petition No. 1914/2014 decided on 04.06.2015) by a Coordinate

Bench of this Hon'ble Court.

(d) Smt. Gafroon v. State of Rajasthan & Ors. (S.B. Civil Writ

Petition No. 9951 of 2007 decided on 29/05/2012) by a

Coordinate Bench of this Hon'ble Court at Jaipur Bench.

4. On the other hand, learned counsel appearing on behalf of

the respondents, while opposing the aforesaid submissions made

on behalf of the petitioners, submitted that the present

controversy had already been settled by the Hon'ble Apex Court in

the case of State of Rajasthan v. Shri Mahesh Kumar Sharma

(Civil Appeal No. 2278 of 2011, decided on 02.03.2011).

4.1. It was further submitted that in pursuance of the aforesaid

judgment, the Government of Rajasthan issued a circular No. F.6

(4) FD (Rules)/03 PT, Jaipur dated 05.05.2011 regarding medical

reimbursement of expenses incurred on Cardiac surgery/other

treatment, providing the guidelines for needful pleadings.

4.2. It was also submitted that the ambulance services so used

by the original petitioner for her shifting from Dehradun to the

hospital in New Delhi could not be termed as a part of the medical

treatment, and thus, the same was not part of the claim under the

Scheme for treatment of ailment. Furthermore, as per learned

counsel, the treatment so taken by the original petitioner in New

Delhi lacks establishment of the fact that the same was taken

after due approval of a government hospital.

4.3. In furtherance, the original petitioner availed treatment from

Goyal Hospital and Research Centre Private Limited, Jodhpur

[2023:RJ-JD:40941] (5 of 11) [CW-4531/2011]

which is a private hospital and the reimbursement for treatment

from private hospital can be taken only in case of emergency after

due approval from a government hospital, whereas the same has

not been established by the original petitioner in this case.

4.4. It was also submitted that Clause 4G of the Rajasthan

Pensioners Medical Concession Scheme, 1989 prescribes the

criteria for medical reimbursement towards the expenses incurred

on treatment of disease other than heart ailment in a recognized

hospital outside State of Rajasthan, and the same is limited to the

general ward in AIIMS, New Delhi; in absence of certificate from

AIIMS, a pensioner is allowed 80% of cost of medicines and 60%

of cost of expenditure incurred on tests, and thus it was in view of

this very provision that the concerned authority sanctioned

reimbursement amount to the original petitioner to the tune of

Rs.1728/- as against the Combined Medical Institute Hospital,

Dehradun and amount of Rs.32,396/- for treatment availed in

Indraprastha Apollo Hospital, New Delhi.

4.5. It was further submitted that the claim for reimbursement

for expenditure incurred at Goyal Hospital and Research Centre

Private Limited, Jodhpur was returned as there was no certificate

showcasing emergency for shifting of the original petitioner from

New Delhi to Jodhpur.

5. Heard learned counsel for the parties as well as perused the

record of the case alongwith the judgments cited at the Bar.

6. This Court observes that the original petitioner a retired

government servant while being on a pilgrimage in the year 2009

suffered from a brain stroke, she was immediately admitted in the

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Combined Medical Institute, Haridwar Road, Dehradun, wherefrom

she was referred to the Indraprastha Apollo Hospital, New Delhi

and was transferred for treatment to the said hospital in an

ambulance. Thereafter she was operated upon and remained

admitted from 26.05.2009 to 02.06.2009; subsequently she was

admitted in the Goyal Hospital and Research Center Pvt. Ltd,

Jodhpur where her treatment continued. After the necessary

treatment, the original petitioner submitted an application for

seeking medical reimbursement pursuant to which only an amount

of Rs.34,124/- was allowed by the respondent authority vide the

impugned letter dated 02.02.2011.

7. This Court is conscious of the judgment rendered by the

Hon'ble Apex Court in the case of Shiva Kant Jha (Supra),

relevant portion whereof is reproduced as hereunder:

"17. It is a settled legal position that the government employee during his lifetime or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality hospitals are established for treatment of specified ailments and services of doctors specialised in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in speciality hospital by itself would deprive a person to claim reimbursement solely on the ground that the said hospital is not included in the government order. The right to medical claim cannot be denied merely because the name of the hospital is not

[2023:RJ-JD:40941] (7 of 11) [CW-4531/2011]

included in the government order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by doctors/hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court."

8. This Court is also conscious of the judgment rendered by

a Division Bench of this Hon'ble Court in the case of Shiv

Ratan Sharma v. Chairman And Managing Director,

Bharat Sanchar Nigam Limited and Ors. (D.B. Civil Writ

Petition No. 18553/2018, decided on 29.07.2019),

relevant portion whereof is reproduced as hereunder:

"13. In the backdrop of authoritative pronouncement of the Apex Court in Shiv Kant Jha's case (supra), adverting to the facts of the present case, the factum of the petitioner suffering from Coronary Artery Disease (CAD)/Triple Vessle Disease and having undergone Coronary Artery Bypass Grafting Surgery stands established beyond doubt on the basis of the documents placed on record, genuineness whereof is not disputed by the respondents before this court. In this view of the matter, the respondents could not have rejected the claim of the petitioner as such solely on the ground that he had not sought permission for undergoing the surgery at non recognized/non empanelled hospital. In our considered opinion, the respondents are under an obligation to consider the claim of the petitioner for medical reimbursement on the basis of the documents produced and the medical reimbursement if not in full, at least to the extent of the

[2023:RJ-JD:40941] (8 of 11) [CW-4531/2011]

claim admissible at the rates applicable for a particular hospital recognized by the BSNL, deserves to be allowed."

9. This Court is of the opinion that it is not in dispute that the

present case was one involving dire emergency requiring

immediate attention and care to the original petitioner, and thus,

though the original petitioner was admitted in a Hospital in

Dehradun, however was transferred for treatment to a Hospital in

New Delhi whereupon she received the necessary treatment for

her condition; however, the respondent authority has refused to

reimburse the ambulance charges so incurred by the original

petitioner.

9.1. This Court is further conscious of the judgment rendered by

a Coordinate Bench of this Hon'ble Court in the case of Satyapal

Singh v. State of Rajasthan & Ors. (S.B. Civil Writ Petition

No. 4678/2019, decided on 09.09.2022), relevant portion

whereof is reproduced as hereunder:

"In Surjit Singh v. State of Punjab and Ors. reported in AIR 1996 SC 1388 decided on 31.01.1996, the Hon'ble Apex Court held as under:-

"10. ...........In such an urgency one cannot sit at home and think in a cool and calm atmosphere for getting medical treatment at a particular hospital or wait for admission in some Government medical institute. In such a situation, decision has to be taken forthwith by the person or his attendants if precious life has to be saved."

In Rama Prasad Sharma v. State of Rajasthan and Ors.; SBCWP No.7469/2016 decided on 21.01.2022, this Court held as under:-

".........It is now a settled position of law that even in cases where the treatment of an employee has been taken in non-

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recognized hospital the medical reimbursement has to be made at the rate that may be applicable for similar treatment in the recognized government hospitals."

The ratio as laid down in the above judgments makes it clear that the law on the point is settled that even in the cases where the treatment of an employee has been taken in non-recognized hospital, the medical reimbursement has to be made at the rate that may be applicable for similar treatment in the recognized Government Hospital. So far as the present matter is concerned, the amount which has been reimbursed is only qua the procedure undertaken. So far as the medicines, drugs, anesthesia and room charges etc., are concerned, no amount qua the same has been reimbursed and admittedly the same is payable in terms of the Rules of 2008."

9.2. Thus, the impugned action of the respondent authority in not

taking the ambulance charges into consideration while granting

reimbursement to the original petitioner only towards the hospital

expenditure incurred, is worth deprecating. In situations such as

the present case, it cannot be expected either of the ailing person

or the well wishers of such a person to take the ailing person to a

government hospital or to a private one recognized by the

government, in a life or death situation, where the sole purpose of

the family members or near ones is to save the life of the person

suffering from serious ailment.

9.3. In furtherance, this Court observes that the ailment occurred

in the year 2009 and prior to the same, the Rajasthan Civil

Services (Medical Attendance) Rules, 2008 had come into force,

thus as per Rule 2 of the said Rules, the original petitioner would

be covered under these Rules, and as far as question of charges

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other than the procedure undertaken, such as medicines, drugs

etc., the same would be payable as per the Rajasthan Civil

Services (Medical Attendance) Rules, 2008.

10. This Court also observes that the original petitioner was

discharged from the Indraprasth Apollo Hospital, New Delhi on

02.06.2009 and thereafter immediately hospitalized in Goyal

Hospital & Research Centre Pvt. Ltd., Jodhpur on 03.06.2009 to

05.06.2009, where the treatment of the original petitioner

continued, thus it cannot be said that the emergent situation had

ended and that the original petitioner was completely out of

danger.

11. Thus, in light of the aforesaid observations and in view of the

aforementioned precedent laws, as well as looking into the factual

matrix of the present case, the present petition is disposed of

with the following directions to the respondents:

(a) Payment in the form of medical reimbursement

against the expenses incurred on the medical treatment

of the original petitioner be made equitably to her legal

representatives-petitioners No.1/1 to 1/4 herein.

      (b)   Such     payment          shall        also       include       the

      reimbursement      of    expenses         incurred          towards   the

hospital charges and the same shall be in consonance

with the rates prescribed for similar treatment in

Government Hospitals and the rates shall be the one

prescribed by the Government at the time of treatment

of the original petitioner.

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amount qua the ambulance charges, medicines, drugs,

room charges and all other heads payable in terms of

the Rajasthan Civil Services (Medical Attendance)

Rules, 2008, if not already paid.

(d) Such Reimbursement, as directed above, shall be

made within a period of two months from today.

However, it is made clear that in case the exercise as

directed in the present judgment is not completed

within the aforesaid period, the due amount, if any,

shall carry an interest @ 6% per annum.

11.1. All pending applications stand disposed of.