JUDGMENT
Mahmood Ali Khan, J.
1. This writ petition is filed under Article 226 of
the Constitution of India for issue of a writ of
mandamus directing the respondents 1 to 4 to reimburse
the medical claim of Rs.1,30,238.90 of the petitioner
incurred on his treatment and coronary bypass surgery in
Indraprastha Apollo Hospital, New Delhi with interest @
24% per annum and issue of writ in the nature of
certiorari quashing the order of the respondent bearing
no.705dated 9.8.1998 by which reimbursement claim was
declined.
2. Material facts, in brief, are that the petitioner
is working as a Trained Graduate Teacher in Dau Dayal
Arya Vedic Senior Secondary School, Naya Bans, Delhi
which is a Government aided school, and is governed by
the Civil Services (Medical Attendance) Rules in the
matter of medical attendance and reimbursement of claim
for treatment. The petitioner was suffering from (CAD)
triple vessel coronary artery disease. On 17.9.1996
angiography was doneon him in G.B. Pant Hospital (a
Delhi Government Hospital). His condition was found
stable and he was discharged with instructions “to
attendcardiology clinic room No.7 on Monday/Friday and
to collect final CAG Report from Ex. II Lab and report
after three days.” The claim for expenses incurred on
medicine and angiography done in the said hospital was
later on reimbursed to the petitioner. It is alleged in
the petition that after a fortnight the condition of the
petitioner started deteriorating and he had to undergo
elaborate medical check up. He consulted Dr. M.P. Gupta
on 5.10.1996and 9.10.1996. Healso consulted
Dr. R.C. Bhatia of Swamy Dayanand Hospital, who is a
cardiologist and who advised him to have immediate
coronary bypass surgery as he was complaining of
re-current chest pain and dysponea. The petitioner
tried to take an early date for his surgery in AIIMS but
could not succeed. His family then rushed him to
Indraprastha Apollo Hospital on 14.10.1996 where he was
put under observation for surgery on account of his
critical condition. A coronary by-pass surgery was then
performed on him on 17.10.1996 since his case required
an emergency treatment. He was discharged from the said
hospital on 25.10.1996. On 11.1.1997 the petitioner
submitted medical bills to the Department of Education
of the Govt. of NCT of Delhi for reimbursement of the
medical expenses totalling Rs.1,30,238.90 incurred by
him on the surgery and treatment at Indraprastha Apollo
Hospital. Out if it Rs.1,28,020/- was for treatment and
operation in the hospital and the balance of Rs.2,218.90
was the expenditure incurred on medicine. Despite
repeated reminders and legal notice dated 21.9.1999 the
respondents have failed to reimburse the claim.
Contrarily the respondents have rejected the claim of
the petitioner on 9.8.1998 vide letter No.704 addressed
to the Principal of the School, where the petitioner was
working, without assigning any reason. Hence the
petition.
3. On noticing, Mr. V.K. Sharma, Deputy Director of
Education has filed a counter affidavit on behalf of
respondents 1 to 3 i.e. Lt. Governor of Delhi, Govt.
of NCT of Delhi, Director of Education and Deputy
Director of Education (North).In the counter affidavit
it was averred that the petitioner had started taking
treatment from G.B. Pant Hospital and he was advised to
collect angiography report after 7 days and to take an
early date for operation from CTVS Department of the
hospital but instead of following it up the petitioner
preferred to get his treatment from a private hospital
of his own sweet will. Therefore, he is not entitled to
reimbursement of the medical claim submitted by him
since he was neither referred to the said hospital by
G.B. Pant Hospital nor any other government hospital.
There are three referral hospitals as per circular
no.F.27/9/97/H&FW dated 26.9.1997 read with circular
No.F.27(9)/93-97/M&PH/PF dated 15.9.1999of the
Government of National Capital Territory of Delhi
(Health and Family Welfare Department) which are (1)
Batra Hospital and Medical Research Centre; (2) Escort
Health Institute and Research Centre; and (3) National
Heart Institute and Research Centre. There is no rule
under which a government employee of the Govt. of NCT
of Delhi can claim reimbursement for treatment taken by
him in a private hospital of his own. The petitioner
himself is to blame for not following the advice of
doctors at G.B. Pant Hospital and not reporting there on
the scheduled date. The petitioner was not interested
in his treatment in G.B.Pant Hospital because of his
false psychological impression that he would not be
treated/operated well there. He of his own went to
M.C.D. Hospital again for advice for which respondent
no.2 is not bound to reimburse the claim. The case of
the petitioner was considered without undue delay in
accordance with Central Services (Medical Attendance)
Rules. Indraprastha Apollo Hospital is a private
hospital and is not recognised for treatment for Delhi
government employees. The claim of the petitioner was
not found tenable. The representation made by the
petitioner was considered by the Director of Education
and was referred to Director of Health Services for
expert opinion since the case of the petitioner was that
the treatment was taken at Indraprastha Apollo Hospital
in emergency. The Director of Health Services after
obtaining the reports from G.B. Pant Hospital where
coronary angiography of the petitioner was conducted
earlier was of the view that the petitioner had not
followed the advice given to him byte doctors of
G.B. Pant Hospital since he was asked to collect the
angiography report after 7 days and take an early date
for operation from CTVS Department of the said hospital.
Instead of following this advice the petitioner
preferred to get treatment at the private hospital
without being referred to by any doctor of any
government hospital on the ground of emergency. The
State Government employees are provided medical
attendance and facilities in various hospitals and
dispensaries and in certain specified cases as per the
prescribed rules, the doctors of the government hospital
refer typical and emergent cases to listed/recognised
hospital for which reimbursement facility is available
subject to prescription of such cases to these private
hospitals also. The claim of the petitioner was
rejected in accordance with the Civil Services (Medical
Attendance) Rules.
4. In the rejoinder the petitioner controverter the
case pleaded in the counter affidavit. It was submitted
that according to the Circular No.F.27/9/97-H&FW dated
26.9.1997 Central Services (Medical Attendance) Rules
were applicable to the employees of the Government of
N.C.T. of Delhi till new rules were framed. The
respondents have concealed circular
no.G.I.,M.H.&F.W.,O.M.No.S.14024/13/96M.S. dated 1st
July 1997 of CS (MA) Rules according to which Circular
No. G.I.M.H. & F.W., O.M.No.110011/16/ 94-GHS/
Desk II/CMO(D)/CGHS(P) dated 18th September 1996 of CGHS
as it is was adopted in the Central Services(Medical
Attendance) Rules and that CGHS circular declared
Indraprastha Apollo Hospital as a recognised hospital.
He also alleged that G.B. Pant Hospital did not enjoy
good reputation on account of a number of death in
coronary by pass surgery cases and he could not get
early date of operation in AIIMS. It was further
submitted that the Supreme Court has laid down that
right to health is an integral part of right to life and
respondents have deprived the petitioner of his right to
life as enshrined in Article 21 of the Constitution by
rejecting the medical reimbursement claim and the
respondents have further violated Article 14 of the
Constitution as in a number of other cases similar
reimbursement claim has been allowed.
5. In an additional affidavit Gyanendra Srivastava,
Director of Education submitted that as per the
information supplied by G.B. Pant Hospital all the
patients who needed emergency surgery were immediately
operated upon in the hospital and no patient was
referred to any other hospital. After investigation
routine patients were discharged from the Department of
Cardiology of the said hospital and referred to CTVS OPD
for giving dates for surgical operation. The waiting
list of CTVS Department of the said hospital was up to
6-8 weeks. The G.B. Pant Hospital further informed that
usually a patient who needed emergent surgery was not
discharged and that he was referred to a surgeon
immediately unless the patient refused or wanted to go
to any other hospital. Coronary angiography was done on
the petitioner on 17.9.1996 and he was discharged and
was referred to CTVS OPD for an early surgery. After
angiography the petitioner did not report back to
G.B. Pant Hospital and went to Indraprastha Apollo
Hospital on the advice of Dr. M.P. Gupta, Consultant
Cardiologist of Ganga Ram Hospital. It was further
stated that the government employees could have surgery
at G.B. Pant Hospital or if they are apprehensive and did
not want surgery in that hospital they could be referred
to AIIMS but the patient (the petitioner) opted for a
private hospital. The copy of the letter received from
G.B. Pant Hospital was also enclosed.
6. The argument of the counsel for the petitioner is
that the treatment at Indraprastha Apollo Hospital was
taken by the petitioner in an emergency situation as his
condition was deteriorating day by day and any delay in
surgical operation could have been fatal. He further
submitted that even otherwise Indraprastha Apollo
Hospital was a recognised hospital under Civil Services
(Medical Attendance) Rules and the various office
circulars and government orders issued the reunder which
are applicable to the CGHS employees of the Central
Government and which the Government of NCT of Delhi has
extended to cover its employees. He further argued that
the right to life and health was a fundamental right
enshrined in Article 21 of the Constitution of India,
therefore, the petitioner had a right to avail of the
best medical facilities which were available in the city
for saving his life. According to him, in a number of
cases the courts have allowed reimbursement of the
medical claim of the government employees who had
undertaken treatment in a non-governmental/unrecognised
hospital in similar emergency situation. Lastly, he
contended that the petitioner should have been
reimbursed the claim to the extent he would have it
reimbursed in case of treatment at a government
hospital. He referred to the judgments in Surjit Singh
Vs. State of Punjab & Others, , Sadhu
R. Pall Vs. State of Punjab & Others, 1994 (1) SLR 283,
Waryam Singh Vs. State of Punjab & Others, 1996(4) SLR
177 (P&H) (DB), State of Punjab & Others Vs. Ram
Lubhaya Bagga & Others, , Narendra Pal
Singh Vs. Union of India & Others, 1999 (3) AD (Delhi)
769 and a judgment of a single bench given in CWP
No.5317/99 Ms. S. Janani Vs. Union of India & Another
decided on 18.12.2000 in support of his argument.
7. Controverting the argument of the counsel for the
petitioner, the counsel for the respondents, on the
other hand, argued that Indraprastha Apollo Hospital was
a private hospital and it was not on the list of
recognised hospitals under Civil Services(Medical
Attendance) Rules applicable to the employees of the
Government of NCT of Delhi for coronary bypass
surgery. The petitioner had surgery in that hospital
without being referred to by his medical attendant or
any of the government hospitals. Therefore, he was not
entitled to the reimbursement of the claims for medical
attendance, surgical operation and the medicine incurred
by him in Indraprastha Apollo Hospital. Above all, it
is contended, it is not a case of an emergency operation
on the petitioner for saving his life since the
petitioner went to Indraprastha Apollo Hospital on the
advice of Dr. M.P. Gupta, cardiologist consultant of Ganga
Ram Hospital of his own. Furthermore, it is submitted,
the petitioner first went to G.B. Pant Hospital where he
had coronary angiography done and he was discharged with
the instructions for follow up. He was advised to
contact the CTVS, OPD for getting en early date for
surgical operation and collect the report but the
petitioner did not follow up these instructions and
instead opted to go first to M.C.D. Hospital and then
consulted doctors of Ganga Ram Hospital and thereafter
got himself admitted in Indraprastha Apollo Hospital
where he had coronary bypass surgery. Civil Services
(Medical Attendance) Rules and the various office
circulars which have been issued were applicable to the
petitioner and in accordance with them the petitioner
was not entitled to the reimbursement of the expenses
incurred on surgery, treatment and medicine in
Indraprastha Apollo Hospital. She justified the
rejection of the medical claim of the petitioner by the
respondents. She further argued that the case law
relied upon by the petitioner related to the cases of
Punjab Government employees who were governed by medical
attendance rules and the office orders of Punjab
Government. It was contended that the Punjab Government
had allowed its employees to have some specialised
treatment of serious diseases like heart ailment in some
recognised hospitals situated outside the State
including a few hospital government and private at New
Delhi since similar facilities were not available within
the State, which is not a case here. Therefore,
reliance on Punjab case law cited on his behalf is
misplaced she has argued.
8. The short questions that arise for decision in
this civil writ petition are (1) whether Indraprastha
Apollo Hospital is a recognised hospital for the
treatment of coronary by-pass surgery of the employees
of the Government of N.C.T. of Delhi under Civil
Services (Medical Attendance) Rules and the government
orders and circulars issued hereunder; (2) whether the
petitioner had undertaken the treatment and was operated
upon for coronary by-pass surgery in Indrapratha Apollo
Hospital as an emergency case; and (3) whether the
petitioner is entitled to the reimbursement of the
medical claim on account of the expenses of his
treatment and operation done at Indraprastha Apollo
Hospital on the ground that the right to life was a
fundamental right enshrined in Article 21 of the
Constitution of India and the petitioner has a right of
self-preservation and availing of the better medical
attendance and facilities available in a private
hospital, in this case, Indraprastha Apollo Hospital,
for saving his life.
9. The first question first. The petitioner claims
that Indraprastha Apollo Hospital is a recognised
hospital for the treatment of Central Government
employees covered by CGHS in Delhi and the Government of
N.C.T. of Delhi has extended CGHS Rules to its
employees till the rules under Delhi Government
Employees Health Scheme are framed. It is argued by the
counsel for the petitioner that the petitioner was
referred to Indraprastha Apollo Hospital by
Dr. R.C. Bhatia who is heart specialist working in Swamy
Dayanand Hospital of M.C.D. at Shahdara, therefore, he
was entitled to the reimbursement of the full claim of
the expenses for treatment and the operation conducted
in Indraprastha Apollo Hospital. The petitioner has
referred to Swamy’s book on Medical Attendance Rules
Page 122 where a copy of G.I.. M.H. &
F.W.,O.M.No.S.11011/16/94 -CGHS/Desk-II/CMO(D)/CGHS(P)
dated 18.9.1996 has been extracted which provided a list
of recognised private hospitals/diagnostic centres under
CGHS in Delhi for specialised and general purpose
treatment and diagnostic procedures. The relevant
portion of this Circular is given below:
” The undersigned is directed to
say that the issue of recognition of
private hospitals for treatment of CGHS
beneficiaries under CGHS, Delhi and
fixation of ceiling rates has been under
consideration of the Government for quite
some time. It has now been decided to
recognize the under mentioned
hospitals/diagnostic centres for
different specialities (treatment/
diagnostic procedures) mentioned against
their names:-”
10. Below this the name of Indrapratha Apollo
Hospital is mentioned at s.no.18 for specialised and
general purpose treatment and diagnostic procedures.
Relying upon this Government circular it is argued that
Indraprastha Apollo Hospital being a recognised private
hospital for treatment of CGHS beneficiaries the
petitioner has right to take treatment from this
hospital and reimbursement of the full claim for the
expenses incurred on the surgery and the medicines
there.
11. Conversely, counsel for respondents 1 to 3 has
contended that Central Services (Medical Attendance)
Rules apply to the petitioner and other employees of
Government of N.C.T. of Delhi but these rules do not
apply to the Central Government employees who are
covered by CGHS in Delhi. Reference is made to Rule 1
of Central Services (Medical Attendance) Rules. Note 2
appended to sub-rule(ii) of Rule 1of these Rules
provide that “these rules do not apply to:
(i) xxxx
(ii) xxxx
(iii) xxxx
(iv) xxxx
(v) xxxx
(vi) Government servants who are
governed by the Central Government Health
Scheme while in stations where the Scheme
is functioning.”
12. She has also referred to Page 116 and 117 of
Swamy’s book on Medical Attendance Rules. At page 116
it has been provided that the Central Government
servants and members of their family residing outside
the area covered by CGHS in the Union Territory of Delhi
and those who come to Delhi may receive medical
attendance either at Willingdon Hospital or Safdarjung
Hospital which are under the direct administrative
control of Central Government and further that “the
employees of Delhi Administration and members of their
families are, however, continue to receive treatment at
these two Central Government hospitals only on the
advice of their authorised medical attendants”. At page
117 in respect of AIIMS it is provided that this
Institute will be treated as a referral institute/
hospital in respect of the persons covered under the CS
(MA) Rules. At page 118 of the same Book it is
provided that Primary Health Centre, Najafargh,
St. Stephens Hospital, Delhi, Batra Hospital and Medical
Research Centre, Escort Health Institute and Research
Centre and National Heart Institute and Research Centre
have been recognized for the treatment of Central
Government servants and members of their family under
Rule 2(d) of Central Services (Medical Attendance)
Rules.
13. Counsel for respondents 1 to 3 has also filed the
copies of the circulars issued by the Government of
N.C.T. of Delhi on26.9.1997 and15.9.1999. The
circular no.F.27/9/97/H&FW dated 26.9.1997 was issued in
pursuance to a scheme formulated by the Government of
N.C.T. of Delhi for providing medical facilities to its
employees and other beneficiaries. The relevant extract
of this circular is reproduced below:
” In continuation of this
Department letters of even number dated
13.3.1997, 13.5.97 and 22.7.97 on the
above noted subject, I am directed to
in form you that the various queries were
raised by different departments with
regard to implementation of this scheme.
These have been considered and the
following procedure for providing medical
facilities/reimbursement thereof has been
decided in consultation with office of
Finance Department/Controller of
Accounts.
(1) All the head of offices shall
ensure that monthly contribution from the
employees whoopt for this scheme is
deducted from their respective salary
latest by 31.10.1997 to make them
eligible for reimbursement under this
scheme. In case of a pensioner all head
of the offices/DDOs where the pensioner
last served, shall receive five yearly
contribution or at least one year
contribution from the pensioners at the
rate already communicated against TR-5.
(2) Since the scheme was made
effective from 1.4.1997 but all the
employees could not get Health Cards on
that date, the employees may be treated
as eligible during the period from 1.4.97
to the date they get their health-cards.
(3) Central Services (Medical
Attendance) Rules are applicable under
this Delhi Govt. Employees Health Scheme
till new rules are framed.
(4) Reimbursement scheme duly
supported by the prescribed certificate
from authorised medical attendents of the
Delhi Govt. Hospitals/St. Stephens
Hospitals and other referral is
admissible to the members of this scheme.
(5) All the cases of
reimbursement shall be received and
processed in the office where a member of
the scheme is working or from where
he/she retired.
(6) All the heads of the
Department are, therefore, advised to
make adequate budget provision on this
account in the Revised Estimates for the
current financial year.
Monthly contribution from the
members of this scheme are required to be
debited in the following head of
account:- Major Head”210″ Medical&
Public Health 01-Urban Health Services,
800-Other Receipts.
Receipts in view of Medical
facilities provided to the employees/
pensioners of Delhi Government and
reimbursement on this account may be
debited in respective salary head. The
following hospital under Government of
N.C.T. of Delhi are recognised for
treatment of the members of the scheme:”
14. Below this a list of all the hospitals,
Allopathic, Ayurvedic, Homoeopathic dispensaries run by
the Government of N.C.T. of Delhi has been given.
Thereafter the portion of the circular, which is
relevant, reads as under:
…………………….
The following hospitals/
diagnostic centres have been recognised
as referral hospitals for the members of
the scheme:
HEART DISEASE
Escort Health Institute and Research Centre
National
Heart Institute and Research Centre.
Batra Hospital and Medical Research Centre;
15. The office circularNo.F.27(9)/93-97/M&PH/PF
dated 15.9.1999 was issued for providing rates of
charges of by-pass surgery CAB in respect of private
hospitals recognised at par with CGHS. The relevant
portion of this circular is extracted below:
” I am directed to forward
herewith a copy of Order based on
Ministry of H&FW, Govt. of India
O.M.No.S.14025/45/94-MS dated22-04-98,
which contains the rate of Coronary
By-Pass Surgery for the following
recognised Private Hospitals:
1. Batra Hospital and Medical
Research Centre;
2. Escort Heart Institute and
Research Centre
3. National Heart Institute and
Research Centre.”
16. Counsel for respondents 1 to 3 referring to these
office circulars has argued that only three private
hospitals (1)Batra Hospital and Medical Research
Centre; (2) Escort Health Institute and Research
Centre; and (3) National Heart Institute and Research
Centre are the recognised hospitals and diagnostic
centres where the employees of Government of N.C.T. of
Delhi may be referred to for treatment of the heart
disease including coronary by-pass surgery. It was
strenuously urged that Indraprastha Apollo Hospital
being a private hospital is not recognised under the
C.S. (M.A.) Rules and by the Government of N.C.T. of
Delhi for treatment and surgery of heart diseases so the
respondents 1to 3 rightly declined to reimburse the
medical claim submitted by the petitioner. She has also
argued that as appears from the report of G.B. Pant
Hospital dated 30.8.2001 sent to the Director of
Education – respondent no.3, who had submitted it
along with his additional affidavit dated 7.9.2001, it is
clear that in case a patient is not willing to have his
surgery at G.B. Pant Hospital a reference was being made
to AIIMS or to the private hospitals also. According to
her, the petitioner, in this case, did not report back
to G.B. Pant Hospital and get his case referred to AIIMS
or any other recognised private hospitals like (1) Batra
Hospital and Medical Research Centre; (2) Escort Health
Institute and Research Centre; and (3) National Heart
Institute and Research Centre, therefore, he had no
right to claim reimbursement of the expenses incurred on
treatment at Indraprastha Apollo Hospital. It is
submitted that no government hospital or authorised
medical attendant of the petitioner as per rules has
referred his case for treatment at Indraprastha Apollo
Hospital. It is also not a case of emergency treatment
at the said hospital. For all these reasons she has
justified the rejection of the medical reimbursement
claim submitted by the petitioner.
17. The respondents 1 to 3 have filed Delhi
Government circulars which were issued in 1997 and 1999
after the formulation and implementation of a scheme for
its own employees on the pattern of C.G.H. Scheme of
Central Government employees. The petitioner had his
surgery and treatment at Indraprastha Apollo Hospital in
the year 1996. Therefore, these circulars are not of
much help in deciding the case of the petitioner. Delhi
Government has not framed its own rules under the new
health Scheme. In the absence of the rules framed under
its own scheme, the government was adopting the office
circulars issued by the Central Government under Civil
Services (Medical Attendance) Rules and CGHS to apply
them, with or without modification, on its own
employees. No Delhi Government order/office circular
has been produced or brought to the notice of this Court
by which office circular G.I.. M.H. &
F.W.,O.M.No.S.11011/16/94 -CGHS/Desk-II/CMO(D)/CGHS(P)
dated 18.9.1996 (relied upon by the petitioner) was
adopted by Delhi Government for applying over its
employees. Till the Rules are framed under Health
Scheme of Delhi Government, C.S.(M.A.) Rules shall
continue to apply to Delhi Government employees.
18. In Swamy’s book on Medical Attendance Rules at
pages 54 to 57 extract of G.I.M.H.&F.W.OM
S14025/55/92-MS dated 19th August 1993 and S-14025/43/94
MS dated 31st October 1994 is given. These office
orders were applicable to Delhi Government employees in
1996 when the petitioner had his surgery. The relevant
portion of these office circulars is reproduced below:
(15) Recognized private hospitals and
approved rates for Coronary Bypass Surgery –
The approval of the Government is conveyed
for reimbursement of medical expenses under
Central Services (Medical Attendance)
Rules,1944, for specialized treatment like
Heart, Kidney, Coronary, etc., at par with
CGHS beneficiaries as only in these cases a
package deal arrangement with private
hospitals for CGHS beneficiaries exist at
present. The rates of Coronary Bypass
Surgery for all recognized private hospitals
will be as under:
_ __________________________________________
Rates to be Entitlement charged by the
private recognized hospital
___________________________________________I. Rates for CBG
(a) General ward (basic pay
up to Rs.2,500) 64,000
(b) Semi-private ward (basic
pay Rs.2,501 up to Rs.3,500) 72,000
(c) Private ward (basic pay
Rs.3,501 and above) 89,000II. Rates for Coronary
Angiography(a) General ward8, 500
(b) Semi-private ward 9,000
(c) Private ward 10,500
III. Rates for other
investigationsStress Thallium Test 6,000
Rest Muga Study 1,000
Stress Muga Study 1,100
Droppler Echo Cardiography 700
Holter Monitoring 800
___________________________________________
2. The above-mentioned revised rates
are subject to the following conditions:-
(i) The rates for CABG, Coronary,
Angiography and other investigations will be
regulated on package deal basis. The package
for CABG and Coronary Angiography include
room rent from the date of admission to the
date of discharge, service charges,
nursing/medical care, surgeon’s and
anaesthetist’s fee, operation theatre charge,
etc., but does not include diet, cosmetics,
toiletry, telephone charges, etc., which
would be borne by the CS (MA)’s beneficiaries
themselves.
(ii) The CS (MA)’s beneficiaries
undergoing treatment for Angiography, CABG
and other specified tests in the private
recognized hospitals, will be reimbursed to
the extent mentioned in this OM. The amount
charged over and above the prescribed rates
will have to be borne by the beneficiaries.
(iii) The above rates will remain in
force for a period of 2 years and no request
for revision of rates will be entertained
during this period.
(iv) Reimbursement in respect of CS
(MA) beneficiaries will be made at the
above-mentioned rates or the rates charged by
the hospital, whichever is less.
3. There will be no distinction
between the first and the subsequent bypass
surgery and the amount proposed would be
applicable to any number of bypass surgeries.
4. The amount mentioned above will
be paid directly to the recognized hospital
by Department/Ministry concerned, from
“Service Head”.
5. A list of private recognized for
Coronary Angiography and bypass surgery on a
referral basis is given in the Annexure.
6. The admission in these hospitals
will be regulated on the package deal basis.
The package will include professional charges
like surgeon’s fee, anaesthetist’s fee, etc.,
hospital stoppage charges for the total
period of stay from admission till discharge,
medication and food.
7. The above rates shall come into
effect immediately.
8. The procedure for obtaining the
treatment for Coronary Bypass Surgery in
recognized private hospitals will be as
follows:-
(i) On the basis of advice of
Cardiologist of either a Central/State/UT
Government hospitals, a referral letter is to
be issued by the competent authority of the
Ministry/Department. The referral letter
will indicate the name of the hospital where
the treatment would be taken, the amount that
would be paid/reimbursed and the
Department/Ministry which will settle the
claim for payment/reimbursement.
(ii) All Central Government employees
should apply for permission to the concerned
Department/Ministry along with a certificate
of their pay particulars.
(iii) The choice of the recognized
hospital where the Government servant would
like to avail of the treatment is left to the
beneficiary himself subject to the condition
that no travel expenses will be reimbursable
if Coronary Artery Bypass Graft facilities
are existing in that particular city.
(iv) All recognized private hospitals
will be required to maintain proper
documentation and records in respect of
beneficiaries admitted in general, semi-
private wards for scrutiny as and when
required by the Government.
9. All the recognised institutions
are requested to confirm immediately that for
the general ward patients, the charges would
be kept within the ceiling prescribed.
G.I.M.H.&F.W.OM S14025/55/92-MS dated
19th August 1993 and S-14025/43/94 MS dated
31st October 1994
ANNEXURE
List of private hospitals recognized for
Coronary Bypass Surgery
_________________________________________
Name of City Name of hospital
_________________________________________
Delhi 1. Batra Hospital and
Medical Research Centre
2. National Heart Institute
3. Escort Heart Institute
& Research Centre
19. In accordance with these circulars, the
government servants on whom CS (MA) Rules applied were
entitled to have their case referred to a private
hospital recognised for coronary angiography and bypass
surgery as given in Annexure. The choice of recognised
hospital where the government servant would like to
avail of the treatment was left tithe beneficiary
himself. As per annexure, in Delhi, 3 private hospitals
were recognised for coronary bypass surgery. They were
Batra Hospital and Medical Research Centre (2) National
Heart Institute and (3) Escort Heart Institute and
Research Centre.
20. In case the petitioner did not want to have
surgery at G.B. Pant Hospital he in 1996 had the choice
to have his case referred to AIIMS or any of the
above named 3 private hospitals recognised for coronary
bypass surgery and have the expenses reimbursed as per
the package approved by the government. Instead of
availing of this facility he chose a private
unrecognised hospital at his own peril. Counsel for the
petitioner has not been able to refer to any of the
rules of Civil Services (Medical Attendance) Rules or
the government circulars applicable to the employees of
Government of N.C.T. of Delhi which permit the
petitioner to have his surgery in a hospital other than
the hospitals, government or private, which are not a
recognised by the Government of N.C.T. of Delhi. It is
pertinent to mention here that even AIIMS is not
recognised hospital for treatment of heart diseases. It
is only a referral hospital and employee of Government
of N.C.T. of Delhi like the petitioner could be
referred to AIIMS for such treatment by the government
hospitals like G.B. Pant Hospital which had the facility
for coronary by-pass surgery available.
Though the petitioner has alleged that he was
referred to Apollo Hospital for surgery by Dr. R.C. Bhatia
of Swamy Dayanand Hospital, Shahdara (a hospital of MCD)
but he has not been able to produce anything to show
that Dr. Bhatia was his authorised medical attendant and
competent to make reference of his case to are ferral
recognised/unrecognised private/government hospital to
entitle the petitioner to the reimbursement of claim.
21. In this context circular of the Government of
N.C.T. of Delhi No. F 335/18/97-H&FW/333 dated 8th May
1997 may also be noted which provided free facilities
for treatment at Indraprastha Apollo Hospital “for the
patients to be sponsored by the Government of Delhi”.
In accordance with this circular the patients would be
sponsored by Medical Superintendents of Lok Nayak Jai
Prakash Narain Hospital, G.B. Pant Hospital, Deen Dayal
Upadhaya Hospital, G.T.B. Hospital and Director of Health
Services, Delhi. Percentage of beds in general ward and
even in private nursing home for treatment of the
patients sponsored by the Government of Delhi free of
cost is provided. The patients so sponsored were
entitled to free consultation, bed, diet, investigation,
nursing, medicines consumables under this scheme. This
scheme is for sponsoring the patients in general and
does not cover the employees of the Government of N.C.T.
of Delhi though the scheme does not specifically exclude
such employees being referred to Indraprastha Apollo
Hospital for free bed under this scheme. But no such
scheme was available in 1996 at the time of surgery of
the petitioner.
22. After careful consideration of the CS (MA) Rules
and the office circulars copies of which have been
produced by both the parties and others referred to
above I am constrained to hold that Indraprastha Apollo
Hospital was not a hospital recognised by the Government
of N.C.T. of Delhi for the treatment/surgery including
coronary by-pass surgery of its employees and the
petitioner.
23. There is also dispute as to whether the
petitioner went to Indraprastha Apollo Hospital as an
emergency case and whether he was operated upon there in
that condition. The petitioner has placed strong
reliance upon a certificate issued by the Indraprastha
Apollo Hospital and his discharge summary which are
Annexures C and D of the writ petition. The certificate
states as under:
“Certified that the patient Madan
Lal Kamra, S/o Sh. F.C. Kamra, R/o 24F
GASTA,B-3, Paschim Vihar, New Delhi 110
063 of DDAV, Sr. Secondary School Naya
Bans, Delhi-110 096 visited the Hospital
on 12/10/1996. After examining the
patient it was found that he needed early
surgery. He was admitted on 14/10/1996
and was operated on 17/10/1996. He is
advised for bed rest for 2 months up to
20/12/1996.”
24. The discharge summary after giving the name of
the petitioner and some other particulars stated that
the final diagnosis of the petitioner was
“Atherosclerotic triple vessel coronary artery disease,
critical left main coronary artery disease, unstable
angina, essential hypertension”. The name of the
referring Physician was Dr. R.C. Bhatia. Referring
Cardiologist was Dr. Atul Luthra. The particulars of the
operation done on the petitioner mentioned in it were
“Coronary artery bypass grafting x6. Left internal
mammary artery anastomosed to left anterior descending
artery. Individual reversed saphenous venous grafts to
last obtuse marginal artery, right posterior descending
artery, first and 2nd diagonal arteries and distal left
anterior descending artery.”
25. Annexure E is the bill which showed the Package
Deal for CABG was Rs.1,19,000/-, Echo Cardiography
Rs.1,260/- and Maxima Oxygenerate was Rs.6500/- besides
M.R.F. Rs.160/-. The gross total of the bill was
Rs.1,28,020/-.
26. None of these three annexures indicate that the
petitioner on14.10.1996 was taken in emergency to
Indraprastha Apollo Hospital, nearest available hospital
for specialised treatment of the heart disease or that
he was operated upon on 17.10.1996 as an emergency case.
Respondents 1 to 3 have contended that the case of the
petitioner was not that of emergency but a planned
admission in Indraprastha Apollo Hospital to have
coronary bypass surgery there. Attention has been drawn
to Annexure A of the writ petition which are the
treatment provided to the petitioner at G.B. Pant
Hospital on 17.9.1996. According to this report the
petitioner was suffering from ANGIO AOE III Strongly
Positive TMTCAG; TVD in LAD. The provisional
diagnosis was `CAD ? I. Main.’ The condition of the
patient at the time of discharge was stable. The report
further provided in the column “Holter”: “Cath & Angio
As on Obverse” and “Plan”: “Early Surgical
Revescularisation REFFD: CTVS for early date please.”
Instructions for follow up were “To attend cardiology
clinic room no.7 on Monday/Friday. To collect final CAG
Report from Ex-II Lab and report after 3 days.”
27. It is submitted on behalf of the respondents that
it is clear from these reports that the petitioner was
advised early surgery and was instructed to contact CTVS
OPD for taking an early date for surgery and for
collecting his CAG Report from the concerned Lab within
three days. The petitioner did not report back to G.B.
Pant Hospital and did not collect the report or take a
date for early surgery. Instead he decided to have the
surgery at Indraprastha Apollo Hospital on the advice of
a consultant working in a M.C.D. Hospital (as alleged by
the petitioner) or in Sir Ganga Ram Hospital (as alleged
by the respondent).He as such planned to have his
surgery at Apollo Hospital and it was not a case of
emergency.
28. On the other hand, counsel for the petitioner
submitted that the petitioner sent his friend to
G.B. Pant Hospital for collection of the CAG Report and
he was advised by a doctor there that the petitioner
should have immediate surgery and further that it was
not safe to have surgery at G.B. Pant Hospital where the
rate of success of such operation was low. In this
connection, he also referred to a newspaper report about
use of contaminated surgical aids in G.B. Pant Hospital
for septicaemia deaths in 1994-96.
29. The facts as emerged from the pleadings of the
parties and the documents placed on record clearly
indicate that the petitioner went to Indraprastha Apollo
Hospital for surgery not as a case of emergency but as a
matter of choice. This is clear from a representation
which the petitioner made to the Deputy Director of
Education, North Zone on 30.7.1996 and is Annexure R-V
of the counter affidavit filed on behalf of respondents
1 to 3. The relevant portion of this representation is
reproduced below:
” Angiography (CABG) was done on
17.9.1996 and the condition at the time
of discharge was stable from G.B. Pant
Hospital it got deteriorated son after a
fortnight I sent my neighbour to collect
the report and CAG film the remarks of
Dr. G.S. Gambhir were, “Where is the
patient? He should be in the hospital.
He is just like an atom bomb when is he
going to burst no one knows because of
severe blockage. He needs an emergency
operation. Having come to know I
immediately contacted the medical
experts’ advice. One and all advised me
to go to a Hospital where emergency
operation could be performed and warned
me against the conditions of G.B. pant
Hospital which showed no chances of life
after operation “Jaan Hai to Jahan Hai,”
were the remarks of a nurse who works in
G.B. Pant.
30. I sought consultation from
Dr. M.P. Gupta on 5.10.96 who referred and
advised me early surgery(Evidence
enclosed). Then I visited Swami Dayanand
Hospital on 9.10.96 and sought
Dr. R.C. Bhatia’s advice.(I have been under
his treatment since 1985 as a
hypertension case). He is a Sr. Splt. in
Cardiology. He too advised me early
surgery (Evidence enclosed). It was as
if all roads went to Indraprastha Apollo.
I took appointment on 12.10.96 Saturday
and was advised to immediately get
admitted to the Hospital for emergency
operation. I could manage to collect
funds and took admission on 14.,10.96.
The doctor said “Others can wait,
M.L. Kamra can’t. He should be operated
on 17.10.96 in the morning.” I felt
my self safe at the hands of Dr. G.K. Mani.
It is the expert Dr’s advice that has
saved my life and I am alive to claim the
expenses and I am sure had I been at
G.B. Pant Hospital you might have found my
wife and daughter at your door for
justice (for pensionary benefits).”
31. Counsel for the petitioner has vehemently argued
that the petitioner has a right of self-preservation and
considering the advice of the doctors it was absolutely
necessary for the petitioner to have coronary bypass
surgery at the earliest for saving his life. According
to him the petitioner at first approached AIIMS for the
surgery but was not given an early date. Therefore, he
had no option but to have this operation at Indraprastha
Apollo Hospital. Excepting bare words of the petitioner
that he was denied an early date for surgery at AIIMS
nothing has been produced on record to corroborate this
allegation. The petitioner could not have gone to AIIMS
for this operation of his own without being referred to
by G.B. Pant Hospital or any other hospital of the
Government of N.C.T. of Delhi where facilities for such
operation were available. Though the petitioner had
tried to explain as to why he had decided not to have
surgery at G.B. Pant Hospital but he has not given any
reason why he did not get himself referred to other
three private hospitals namely (1) Batra Hospital and
Medical Research Centre; (2) Escort Health Institute
and Research Centre; and (3) National Heart Institute
and Research Centre which are recognised by the Govt.
of N.C.T. of Delhi for treatment of heart diseases and
coronary bypass surgery. G.B. pant Hospital is a super
speciality hospital and has earned a name for itself in
treatment of serious diseases like heart diseases in and
around this part of the country. Still the petitioner
had a wider choice to have his operation in other good
government or private hospitals like AIIMS or three
private hospitals referred to above after getting a
reference made. It is not the case of the petitioner
that he had no opportunity to get the reference made nor
is it his case that there was long queue waiting for the
emergency operation in any of these hospitals. He did
say that an early date for surgery was not available in
AIIMS but nothing has been produced on record to
substantiate this allegation. The representation made
by the petitioner to the Deputy Director of Education
which has been produced by respondents 1 to 3 to counter
the allegation of the petitioner does falsify the claim
of the petitioner that he went to Indraprastha Apollo
Hospital as an emergency case and had the operation
therein that condition. The contention of the
petitioner that his was an emergency case, therefore,
could have treatment at the nearest approachable
hospital, government or private, recognised or
un-recognised, for saving his life is not tenable.
Needless to state that the counsel for respondents 1 to
3 has not disputed that in case of emergency where the
life of the patient may be in danger of being wasted the
State Government employees can have the treatment even
in an unrecognised private hospital if it is necessary
for saving their life or health and that they will be
entitled to the reimbursement of the medical bill paid
by them on such treatment on a mere certificate of the
Head of the Department.
32. Reference to the judgments in in Surjit Singh Vs.
State of Punjab & Others (supra), Sadhu R. Pall Vs.
State of Punjab & Others (supra) and Waryam Singh Vs.
State of Punjab &Others(supra) is absolutely
misplaced. All of them pertain to the treatment which
the employees of the Government of Punjab had undertaken
in the hospitals outside the State of Punjab in
emergency under the Service Rules and the office
circulars of the Government of Punjab which permitted
them to have their treatment and surgery at some
recognised hospitals outside the State of Punjab. A few
such hospitals government and private were situated in
Delhi also. These rules were framed by the Government
of Punjab for serious and specialised diseases for which
treatment was not available in the hospitals within the
State of Punjab. The earlier rules provided for a long
drawn procedure for getting permission before the
treatment could be had in the hospitals outside Punjab.
The employees who got treatment in emergency at some
hospitals which were not recognised or without obtaining
prior clearance from the concerned board were denied
reimbursement of medical claim. They approached Punjab
& Haryana High Court. It was in the peculiar facts of
the cases and the fact that such facility was not
available in the hospital within the State of Punjab
that it was laid down that the State Government
employees of Punjab Government had right of
self-preservation and could not have followed cumbersome
procedure and waited in a queue for clearance of their
request for treatment in the hospital outside the State
or outside the country. Their medical reimbursement
claims were allowed. Even in some cases the State
Government was directed to reimburse the claim at the
same scale on which it was reimbursing the claim had the
treatment been undertaken in a recognised government/
private hospital. However, after the policy was amended
the procedure for taking approval for treatment outside
the State of Punjab was made easier, the Supreme Court
in State of Punjab Vs. Ram Lubhaya (supra) upheld the
amended policy but allowed reimbursement of the claim at
the AIIMS rate or in Escort Hospital on account of
peculiarity of facts. In the case of Narendra Pal Singh
Vs. Union of India (supra) the petitioner, a CGHS
beneficiary was posted at Hoshangabad and he had to be
admitted for severe chest pain in a hospital at Vadodara
in emergency. He was found suffering from triple vessel
disease and had coronary bypass surgery in emergency.
It being a treatment/surgery in emergency, which could
not wait for normal procedure to be followed the Court
allowed the reimbursement of medical claim. Similarly
in M/s Janani Vs. Union of India (supra), case of a
retired CGHS beneficiary was referred by R.M.L.
Hospital (Central Government Hospital) to Escort Heart
Institute and Research Centre for coronary angiography.
He was accorded sanction for heart surgery. Part of the
medical bill was reimbursed to him. He filed civil writ
petition for direction to the government to pay the
balance. It was held “If the Government hospital did
not have the facility for giving treatment like the one
which was required to be given to the petitioner, then
it was an obligation on the part of the respondent to
have reimbursed the amount paid to the said hospital.”
33. No advantage of these judgments could be claimed
by the petitioner in this case. In order to succeed and
become entitled to the reimbursement of the medical bill
of Indraprastha Apollo Hospital the petitioner was
required to prove that his treatment brook no delay and
he went to that hospital in emergency. He has not been
able to prove it. Contrarily it appears that the
petitioner planned to have the treatment at Indraprastha
ApolloHospital apprehending that it was not safe to
have it in a government hospital without considering
that three other good private recognised hospitals for
heart diseases were available. For all these reasons it
must be held that the petitioner did not go to
Indrapratha Apollo Hospital in emergency and had his
treatment there in that condition.
34. Now I advert to third question. The Supreme
Court in State of Punjab & Others Vs. Ram Lubhaya
(supra) while dealing with the new policy of the
Government of Punjab which disallowed reimbursement of
the full medical expenses incurred by an employee of the
Punjab Government for such treatment in any hospital in
India not being a government hospital in Punjab, in para
25 observed:
” So far as questioning the
validity of governmental policy is
concerned in our view it is not normally
within the domain of any court, to weigh
the pros and cons of the policy or to
scrutinize and test the degree of its
beneficial or equitable disposition for
the purpose of varying, modifying or
annulling it, based on howsoever sound and
good reasoning, except where it is
arbitrary or violative of any
constitutional, statutory or any other
provision of law. When Government forms
its policy, it is based on a number of
circumstances on facts, law including
constraints based on its resources. It
is also based on expert opinion. It
would be dangerous if court is asked to
test the utility, beneficial effect of the
policy or its appraisal based on facts
set out on affidavits. The court would
dissuade itself from entering into this
realm which belongs to the executive.”
35. In para 29 of the judgment the Supreme Court
further laid down:
” 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
citizen including its employees.
Provision offacilities cannot be
unlimited. It has to be to the extent
finances permit. If no scale or rate is
fixed then in case private clinics or
hospital increase their rate to
exorbitant scales, the Statewould 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.”
36. In para 35 of the said judgment it was observed:
” Learned counsel for the
appellant submits that in the writ
petition filed, the respondent did not
specifically challenge the new policy of
1995.If that was done the State would
have placed all such material in detail
to show the financial strain. 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 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
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.”
37. Supreme Court in the above judgment, thus, upheld
the right of Punjab State Government to lay down policy
and the procedure for those employees who wanted to have
treatment of certain serious diseases in recognised
hospitals outside the State.
38. Government of N.C.T. of Delhi has recognised a
number of hospitals in Delhi for specialised treatment
of heart diseases which include three private hospitals
which are in no way inferior in reputation, services and
facilities to Indraprastha Apollo Hospital. In fact
those hospitals are super speciality hospitals for
diseases relating to heart. The rules also permit
reference of the government servants to other Central
Government hospitals like AIIMS for treatment.
Therefore, unlike the conditions which prevailed in
State of Punjab which compelled the Government of Punjab
to recognise hospitals outside the State for treatment
of its employees, the government servant in Delhi have a
larger choice of hospitals for treatment. Where the
life is in danger of being wasted or there is
possibility of irreparable injury to the health i.e. in
case of treatment in emergency, the employees of the
Government of N.C.T. of Delhi, may under the rules
claim reimbursement of the amount spent by them on the
treatment taken in any of the hospitals private or
government. If he had no time to approach his medical
attendant/government hospital for making reference he
need not worry. A certificate by the Head of the
Department of the government servant that treatment was
taken in emergency is enough for reimbursement of the
medical claim. For these reasons the argument of the
counsel for the petitioner that the rejection of the
medical claim by the respondents tantamount to denial of
fundamental right to life and health to the petitioner
which are enshrined in Article 21 of the Constitution of
India is, therefore, not tenable. The petitioner cannot
claim parity and equity with the employees of the State
Government of Punjab. Every government provides medical
facilities to its employees or for that matter to its
citizens keeping the financial resources and other
constraints in view. It cannot be held that if certain
rules of Punjab Government allowed its employees to have
treatment and reimbursement of their claim for treatment
at a private hospital outside the State of Punjab the
petitioner should also be allowed reimbursement of claim
in similar manner from a private hospital of his choice
and denial of such reimbursement would be discriminatory
and violative of Article 14 of the Constitution of
India. There is no merit in this submission.
39. Now I turn to the last limb of the argument of
the counsel for the petitioner. It is submitted that
the petitioner is a poor employee and he had incurred a
huge sum on his treatment at Apollo Hospital and
reimbursement, at least, should be granted at the same
scale at which he was entitled for it to be granted had
he taken the treatment at a government hospital like
AIIMS or even the G.B. Pant Hospital. Considering the
huge amount spent by the petitioner the prayer of the
petitioner seems innocuous at the first glance.
However, if such reimbursement was allowed it would open
Pandora’s box. The rules have been framed by the State
Government for providing medical facilities to its
servants keeping in view the financial resources, need
and other constraints of the State Government. These
rules are reasonable and cannot be held to have denied
the government servant of fair and adequate medical
facilities. If the petitioner in contravention of the
CS (MA) Rules or the government circulars take a
treatment at a place of his choice and he is reimbursed
the medical claim at the rates which are applicable for
treatment in government hospitals it would open a flood
gate of medical reimbursement claims from its employees
which may not be good for its financial resources. The
government has established the hospitals, spends huge
sum on their maintenance, it has recognised certain
private hospitals also in consultation with the experts
and keeping in view of its own financial resources. The
violation of such rules, therefore, cannot be allowed to
be made even in exception.
40. For the reasons stated above I do not find any
merit in the writ petition. It is dismissed.
