This petition under Article 226 of the Constitution of India is preferred by a judicial officer praying for the following reliefs:-
"(A) By issuing appropriate writ, order or direction, Your Lordships may be pleased to quash and set aside the orders passed by respondent Nos. 2 and 1 dated 27th November, 1999 and 30th June, 2000 respectively, which are at Annexure "A" to this petition and further be pleased to direct the concerned respondents to pay to the petitioner the claim of the petitioner amounting to Rs. 87,462.46 paise along with interest at the rate of 12% per annum forthwith.
(B) Pending the hearing and final disposal of this Special Civil Application, Your Lordships may be pleased to direct the concerned respondents to pay to the petitioner the claim of the petitioner amounting to Rs. 87,462.46 paise along with interest at the rate of 12% per annum forthwith.
(C) Ad-interim ex-parte relief in terms of prayer (B) above be granted.
(D) Such other and further reliefs as Your Lordships may deem fit and proper in the interest of justice be granted."
The facts relevant for the purpose of deciding this petition can be summarized as under:-
In the year 2000 when this petition came to be preferred, petitioner was serving as a Civil Judge (Senior Division) at Patan. As on today, he is a judicial officer of the rank of a District Judge and has been posted at Himmatnagar, District Sabarkantha.
On 30th June 1998, the petitioner sustained a very serious injury while starting his scooter. It appears that immediately thereafter, he consulted one Dr.Jayeshbhai Panchowala and Dr.Harshadbhai, associated at the relevant time with Patan Civil Hospital. It appears from the record that some preliminary treatment was taken at Civil Hospital. On 7th July 1998, the petitioner was once again examined by the doctors of the Civil Hospital and at that point of time, one Dr.Parmar, after examining the thumb of left foot, found that there was lot of formation of abscess. It appears that at that point of time, Doctor advised for amputation of the leg. It further appears that he was asked to get his blood and sugar tested in a pathological laboratory. In the opinion of the doctors, the injury in the foot resulted in gangrene and if the injured part is not amputated, it would result in septicemia, which would ultimately prove to be fatal.
It appears that thereafter, the petitioner consulted another doctor at Patan, named Dr.V.D.Raval. Dr.V.D.Raval was a private practitioner and on examination of the leg of the petitioner, he immediately opined that the part of the leg where gangrene had developed, needed to be amputated at the earliest. As lot of complications cropped up, ultimately Dr.Raval advised the petitioner to immediately rush to Baroda and get himself admitted at Dr.Bhailalbhai Amin Hospital. It appears that on 3rd August 1998, the petitioner got himself admitted at Dr.Bhailalbhai Amin Hospital and he remained as an indoor patient upto 28th August 1998.
Record further reveals that on 28th August 1998, the condition further deteriorated and therefore, the petitioner was admitted in the hospital of a well-known renowned surgeon Dr.A.T.Patel, where Dr.A.T.Patel performed surgery and amputated the part of the leg which had developed gangrene.
Record reveals that the petitioner incurred a total costs of Rs.87,462=46ps. for the treatment including the surgeries which were performed. Thereafter, petitioner placed all the medical expenses bills before the District Judge, Nadiad and requested for reimbursement of Rs.87,462=00 which the petitioner incurred towards the cost of surgery and treatment. It appears that the medical reimbursement to a Government employee is governed by the provisions of the Gujarat State Service (Medical Treatment) Rules, 1988. As per these Rules, the medical treatment in relation to a Government employee means, the treatment by an authorized doctor (being Civil Surgeon, Class-I or Medical Officer Class-II in Government Hospital) and the treatment as per his advice. The stand of the State Government is that since the treatment was not taken at a Civil Hospital and the surgery was not performed by a Civil Surgeon at a Civil Hospital, the petitioner is not entitled to the medical reimbursement as prayed for.
It is at this stage that the petitioner thought fit to prefer this writ petition praying for appropriate directions in this regard.
It appears that during the pendency of the petition, the Department came to the conclusion that the petitioner at the most would be entitled to receive Rs.35,086=00 as per the rules and regulations of the State Government so far as medical reimbursement is concerned. At the relevant point of time, the Government took the stand that the amount sanctioned i.e. Rs. 35,086=00 in favour of the petitioner is the full and final sum, which the petitioner would be entitled to receive. However, at the relevant point of time, the Court directed that the petitioner would accept the aforesaid amount of Rs.35,086=00 without prejudice to his rights and contentions. It appears that in 2002 the petitioner was paid Rs.35,086=00. Now, at this stage, he prays that the balance amount of Rs.52,376=00 must be reimbursed to the petitioner.
I have heard learned Advocate Mr.Acharya, appearing for learned Advocate Mr.P.R.Nanavaty and Ms.Pathak, learned AGP appearing for the State.
Learned Advocate for the petitioner would submit that though the Rules of 1988 provides that the Government employee would be entitled to medical reimbursement only if the treatment is being taken from a Civil Surgeon or a doctor associated with any Government Hospital or Dispensary and not if treatment is taken in a private hospital or through a private doctor, still considering the seriousness of the ailment and the emergency treatment required, the petitioner was left with no other option but to approach a private doctor. He submitted that it was not that the petitioner did not consult a Government doctor. However, he felt at the relevant point of time that he will not get proper treatment in a Government hospital and was quite taken a back when after examination doctor opined that a part of the leg where gangrene had developed needed to be amputated.
He would submit that the petitioner has been discriminated against similarly situated persons and in many cases, the petitioner has reliably learnt that even persons who have taken treatment at private hospitals outside the State of Gujarat have been granted post-facto sanction. He would further submit that it is not even the case of the State that the petitioner has lodged a false claim or that some of the bills of the petitioner are doubtful.
Per contra, Mrs.Pathak, learned AGP appearing for the State submitted that there are statutory rules which govern medical reimbursement to a Government employee. Learned AGP has drawn my attention to the Gujarat State Service (Medical Treatment) Rules, the Act of 1988. Relying on Rule-8 of 1988 Rules, she submitted that there is a procedure which has been prescribed for the purpose of reimbursement of the medical expenses incurred at Hospital outside the State of Gujarat i.e. Hospitals other than the Government Hospital. The learned AGP submitted that if a Government employee wants to take treatment from a hospital other than Government Hospital, then two conditions are required to be fulfilled - (i) a certificate needs to be obtained regarding necessity of treatment from a hospital other than Government Hospital by the authorized Doctor and (ii) Prior approval of the Director of Medical Service. She submitted that if the provisions of Rule-8(1)(c) is not followed/adhered to then in such event, policy enunciated by Government Resolution dated 26th March would come into play. She submitted that an amount of Rs.35,086=00 has been rightly sanctioned and paid to the petitioner as per the Rules and the policy governing the right of medical reimbursement. Mrs.Pathak has relied upon the affidavit-in-reply which has been filed by Mr.K.L.Patel, Under Secretary to Government of Gujarat, Legal Department, Sachivalaya, Gandhinagar. She has relied upon paragraphs 3 to 10 of the reply in support of her contentions, which are reproduced herein below for the sake of convenience.
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It is submitted that the medical expenditure of Government employee is to be claimed by in accordance with the provisions of Gujarat State Service (Medical Treatment) Rules, the Act of 1988. As per these rules, the medical treatment in relation to Government employee means the treatment by authorized Doctors (being Civil Surgeon Class-I or Medical Officer Class-II in Government Hospital) and the treatment as per the advise by him. This is mentioned in Rule 2(4) Note (CH) and therefore no expenditure incurred towards the Medical treatment not given by the authorised doctor can be santioned.
With respect to the averments made in paras 3(1) to 3(7), the same are denied. It is submitted that the petitioner in his letter dated 1.7.99 states that on 30.6.1998 he had injury in his left leg and he approached to Civil Hospital, Patan on 30.6.1998. But he did not continue same nor he took advice of authorised doctor for private Doctors treatment. All what is stated in these sub-para is a treatment not being given by the authorised Doctor as per rules.
With respect to the averments made in para 4 the same are denied. It is submitted that the Director, Health Services (Medical Department) rightly decided not to reimburse the expenditure as the same treatment was not taken in Government Hospital at Patan or Vadodara.
With respect to the averments made in para 5 the same are denied. It is submitted that as stated by petitioner in his representation dated 1.7.1999 was considered by this department in consultation with Health and Family Welfare Department and accordingly as per the advice of that department his claim was not accepted by the State Government.
With respect to the averments made in Ground-A the same are denied. It is submitted that primarily the claim of the petitioner is not in accordance with the provisions of the rules as he has taken treatment in Private Hospitals and therefore denial of his claim can not be said to be violative of Article 14.
With respect to the averments made in Ground-B the same are denied. It is submitted that the standing Rules in his behalf issued in the Act of 1988 by Government in Health and Family Welfare Department are regulating the claims of Medical Expenditure incurred by Government employee for himself and family members. As per these rules only such expenditure for the treatment taken in Government hospitals under authorised medical attendant is admissible. In the present case a treatment is taken in Private Hospital without advice or concurrence of authorised medical attendant and therefore the claim is not admissible in eye of law.
With respect to the averments made in Ground-C the same are denied. It is submitted that by Government Resolution No.MAG/1088/3203/GII dated 23.8.1990 Health and Family department has recognized some hospital outside the State for certain treatments. The petitioner in Special Civil Application No.800/1978 has taken the treatment in the recognized hospital at Madras and the same was decided on merit of the circumstance of that case and it has not laid down law for further cases. In the present case the petitioner has not taken the treatment in such recognized hospital.
With respect to the averments made in relief para, it is submitted that the petitioner at any stage did not take sanction from recognized medical doctor or any Government authority before taking the treatment in Private Hospital the approach in the Civil Hospital at Patan and consulted Dr.Parmar but nothing disclosed in case paper that he was allowed to go for treatment in private hospital. In view of this, the petitioner is neither entitled interim relief or final relief as prayed for by him in this para."
III) Analysis :
Before I proceed to undertake the analysis of the contentions of respective counsel for the parties, I would like to look into the Rules of 1988 governing the issue in question. The Rules are known as the Gujarat Civil Service (Medical Treatment) Rules, 1988.
" Gujarat State Services (Medical Treatment) Rules,1988 Rule-1 :
Short title and application.
(1) These Rules may be called "Gujarat State Service (Medical Treatment) Rules, the Act of 1988."
(2) These Rules shall apply to all Government employees, whose service conditions are governed by the Rules framed or said to have been framed by the State of Gujarat, while they are on duty, on leave or under suspension within India.
(3) These Rules shall not apply to following employees.
(a) Government employees regulated by the All India Services (Medical Attendance) Rules, 1954 i.e. A.I.S. Officers as well as judges of the District and Civil Courts etc.
(b) Government employees on leave or on deputation in a foreign country.
(4) The Rules shall apply to following employees:
(a) Government Pensioners reappointed in the service of Government of Gujarat irrespective of the post he/ she was serving on.
Probationers.
Other Government employees on deputation in Government of Gujarat.
Honorary Medical Officers in Government hospitals and Medical Colleges.
Work Charge Employees who have been in the service for one continuous year.
State pensioners, Chairman and Members of the Gujarat State Public Service Commission and Gujarat Panchayat Selection Board and their family member and including members of AIS working on state cadre.
Daily wagers engaged by the Department who have worked for 360 days on the regular muster -roll in the Public Works Department.
RULE-8 Hospitals at which treatment may be received and reimbursement there for:-
(1) The patient shall be entitled to take free of charge treatment at the following hospitals:
(A) In such Government hospital situated at station or in district where he falls ill, which can, in the opinion of the authorized medical practitioner provide the necessary and suitable treatment; or (B) If there is no such hospital as is referred to in clause (a), in such hospital other than a Government hospital situated at station or in district which can, in the opinion of the authorized medical practitioner, provide the necessary and suitable treatment, or (C) If there is no such hospital referred to in clauses (a) and (b) in such hospital in the state which can, in the opinion of authorized medical practitioner, provide the necessary and suitable treatment, Provided that where in any exceptional case the authorized medical practitioner is opine that the necessary and suitable treatment is available only in a hospital out side the state (but within India), he may, with the approval of the Director Health & Medical Services (Medical) of the state (which shall be obtained beforehand unless the delay involved entails danger to the health of the patient) send the patient for treatment in such hospital."
The grievance of the petitioner in this petition is that even though he was required to take emergency treatment as the doctors were of the opinion that perhaps the leg of the petitioner would have to be amputated as there was formation of gangrene, his medical claim is not sanctioned by the department. The facts as I have reproduced in the judgment are undisputed. It is required to be noted that, whenever there is emergency for taking medical treatment, one is not expected to find out where the Government or Civil Hospital is situated. In such cases an attempt is made by the concerned person or his relative first to approach the nearest hospital so that one can save his life. All other things are subsequent and under the circumstances, the first priority which is required to be given by a person is to save his life. It is not expected, therefore, from an ailing person to run from pillar to post seeking permission or prior approval to go and get himself operated at other hospital outside the State of Gujarat as in the present case at Dr.Bhailalbhai Amin Hospital at Vadodara and at the Nursing Home of Dr.A.T.Patel at Vadodara, having regard to the nature of the ailment. I am of the view, considering the peculiar facts of the case, that the respondents should have gracefully sanctioned the medical bill in favour of the petitioner. In spite of knowing fully well that the doctors were of the opinion that the leg may have to be amputated so as to prevent septicemia, the application of the petitioner was treated as if there was a very minor injury sustained by the petitioner. The Rules, 1988 itself provides that a person can be admitted in the private hospital in case of emergency and even the medical bill for the same emergency treatment can be reimbursed in turn with the rates of the Government hospital or any other private hospital.
At this stage, reference is also required to be made to the decision of the Apex Court in the case of Surjit Singh v/s. State of Punjab, reported in AIR 1996 SC 1388. In paragraph 11, the Apex Court has observed as under :
"The appellant, therefore, had the right to take steps in self preservation. He did not have to stand in queue before the Medical Board, the manning and assembling of which, bare-facedly, 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 alternate hospital as per policy. When the State itself has brought the Escorts on the recognized list, it is futile for it to contend that the appellant could in no event have gone to the Escorts and his claim cannot on that basis be allowed, on suppositions. We think to the contrary. In the facts and circumstances, had the appellant remained in India, he could have gone to the Escorts like many others did, to save his life. But instead he has done that in London incurring considerable expense. The doctors causing his operation there are presumed to have done so as one essential and timely. On that hypothesis, it is fair and just that the respondents pay to the appellant, the rates admissible as per Escorts. The claim of the appellant having been found valid, the question posed at the outset is answered in the affirmative. Of course the sum of Rs.40,000/- already paid to the appellant would have to be adjusted in computation. Since the appellant did not have his claim dealt with in the High Court in the manner it has been projected now in this Court, we do not grant him any interest for the intervening period, even though prayed for. Let the difference be paid to the appellant within two months positively. The appeal is accordingly allowed. There need be no order as to costs."
It also deserves to be stated that it is not a case where the respondents are doubting that the petitioner has undergone operation at Vadodara. They are also not doubting the bill amount of Dr.Bhailalbhai Amin Hospital at Vadodara and Dr.A.T.Patel of Vadodara. It is a matter of common experience that utmost confidence and belief in the professional who had to undertake this operation as well as after care in the hospital are very very essential. It is a case of life and death of a person and he will not like to undergo a serious operation at a hospital in which he has no confidence.
I have come across a judgment rendered by learned Single Judge of this Court (Coram: Mr.Justice S.K.Keshote) in Special Civil Application No.800/1998 decided on 27th October 1999 on almost identical issue in question. I would like to refer and rely upon the same. In the aforesaid case before the learned Single Judge the petitioner of that case had cardiac problem and the angiography test revealed blockages in the arteries. The petitioner was advised to immediately undergo Bypass surgery at Apollo Hospital, Chennai. The petitioner applied for necessary permission in this regard and waited for sanction, but in the meantime suffered a massive cardiac arrest. Two options at that stage were open to him either to go for Bypass surgery at Civil Hospital, where he did not want to go for the reason that much of reputation, confidence and faith had not been acquired by the Civil Hospital and/or was to die. Any human being would not like to die and, therefore, the petitioner immediately rushed to Apollo Hospital, Madras on 5th August 1996 and was operated for severe triple vessel coronary artery. He incurred expenses of Rs.1,19,475=00. He applied for reimbursement of the bill amount of Apollo Hospital, Chennai, but the authorities refused to sanction the same, because no prior approval was sought for by the petitioner. In this background while allowing the petition of the petitioner and directing the Government Authorities to reimburse the amount with 12% interest, the learned Single Judge held and observed as under :
"What the Welfare State and its officers contend is that the petitioner has to undergo bypass surgery of severe triple vessel coronary artery at Civil Hospital, Ahmedabad and not at the Hospital of his confidence and belief. It is unfortunate that the respondents have insisted to undergo for this serious operation at the Civil Hospital, Ahmedabad. But they are not appreciating that despite of the fact that the State Government invests huge amount of public money for this civil Hospital it could not gain that much reputation faith, belief and confidence of the ailing citizens of the city to prefer this Hospital for this type of serious operation i.e. to undergo bypass surgery of triple vessel coronary artery. It is not a matter of going to a restaurant to have lunch or dinner or a breakfast or to go to law garden to have a chat or debeli or hotdog etc. It is a very serious thing and as it pertains to the life of a human being, the person concerned will not like to take any risk and at all the cost he will like to have this operation to be undertaken by a senior experienced and reputed doctor and at the hospital of high reputation and confidence."
"It comes from the different corners that the higher ups of the society, offices and officers of the Government f not prefer to go for all these major operations at the Civil Hospital. Even for angiography, the higher class of officers and the high dignitaries of the State Government, as what it comes from the different corners, do not prefer to go to Civil Hospital. They prefer either to go to Escort, Delhi or Apollo, Madras or Bombay Hospital, Bombay or even at Ahmedabad to the Gujarat Research and Medical Institute (Rajasthan Hospital). If for angiography this class of persons do not prefer civil hospital how it is desirable and reasonable of the officers of the Gandhinagar to expect that the petitioner had to go for this serious operation at the civil Hospital, Ahmedabad."
"In a case where employee is serious and desires to go to the hospital outside the State for operation and which he had also made it clear by making an application, if we go by the defence of the respondents, then he has to wait till the sanction has been granted before he proceeds to Chennai (Madras) and the possible result would have been in majority of the cases death of that person. In such matters, it is not unknown that the officers of the State Government do not expeditiously deal with such applications."
"The petitioner has applied for grant of sanction i.e. he also applied for grant of permission to him to go for this operation at Apollo Hospital at Madras. There is all possibility that in the meanwhile he could have suffered acute heart attack and shall have to undergo the operation immediately. In such a case, under the hope that sanction will be granted he has to wait for this sanction and there is all possibility where the government over this matter and in the meanwhile he could have died of this disease. The bonafide of the Government servant has to be considered and keeping in view the overall facts of this case, i.e. the angiography report, the advise of cardiologist Dr. Gupta as well as of the Cardiologist at the Civil Hospital, Ahmedabad and when the respondents accepted that the petitioner has undergone this surgery at Apollo Hospital at Madras and naturally it is known to the respondents that what is the package of that Hospital at the relevant time at Madras. It is a case where the respondents should have considered the application of the petitioner for post facto sanction for this operation at Apollo Hospital at Madras. It is not the rigidity of the rule or regulation or resolution or standing order which is to be the only consideration. The respondent -State of Gujarat is a Welfare State and its officers are the officers of a welfare State. Their approach should have been to see that where the Government servant puts a bonafide claim for reimbursement of his medical bill it should not be taken lightly and approach in such matters should have been justice oriented."
In the aforesaid view of the matter, the respondents are directed to consider the case of the petitioner for grant of post-facto sanction to him to undergo surgery at Dr.Bhailalbhai Amin Hospital at Vadodara and at the Nursing Home of Dr.A.T.Patel at Vadodara in light of the observations made in this judgment and this exercise has to be undertaken and completed within a period of three months from the date of receipt of writ of this order. In case still the authority feels that it is not a fit case where the post-facto sanction has to be granted to the petitioner to undergo this surgery at the Nursing Home of Dr.A.T.Patel at Vadodara, a reasoned order be passed and copy of the same may be sent to the petitioner by registered post A.D. (J.B.Pardiwala, J.) /moin Top