JUDGMENT
Manmohan Sarin, J.
1. Petitioner is the widow of Shri Dharam
Singh, who was working as Senior Malaria Inspector with
respondent/MCD. She has filed this writ petition,
aggrieved by the non-reimbursement of the medical
expenses incurred for treatment of her deceased
husband. Late Mr. Dharam Singh, husband of the
petitioner, had gone to Rohtak, Haryana in the month of
August, 2001, where he took ill. He was admitted to
Post Graduate Medical Institute of Sciences, Rohtak.
As there was slight improvement in his condition, he
was brought to Delhi and admitted at Bara Hindu Rao
Hospital, Delhi. Both at PGMIS Hospital, Rohtak and
Bara Hindu Rao Hospital, Delhi, certain medicines were
prescribed by the Doctors, which were not available and
had to be purchased from the market by the petitioner
and members of her family. On 3.9.2001, the condition
of Shri Dharam Singh Kaushik deteriorated and he was
referred to AIIMS, New Delhi, where he died on
7.9.2001.
2. Petitioner sought reimbursement of the
cost of medicines as incurred. Petitioner submitted
the bills in the prescribed proforma duly supported
with the prescriptions. The Medical Officers of the
hospitals issued essentiality certificates wherein it
is certified that the medicines prescribed were
essential for the recovery and prevention of serious
deterioration in the condition of the patient. Further
that the medicines were not stocked and were not
available. The purchase of medicines and the treatment
given has been duly certified by the three hospitals
with essentiality certificates.
3. It may also be noted that the petitioner
vide order dated 2.8.2001, was permitted to file an
additional affidavit with regard to its contention that
the medicines were neither available in the stock of
hospitals nor the hospital could make them available by
purchasing it and as such there was no option for the
petitioner’s family but to purchase the medicines from
the market and submit the bills for the same for
reimbursement.
4. It may also be noted that the hospitals
are not private hospitals and happen to be either the
Government hospitals or those recognised and approved
by the Government and MCD as referral hospitals.
5. The respondent has denied the
reimbursement relying on a term of the office order
which is as under:-
“However, in no case reimbursement of
expenditure incurred by a pensioner on
treatment will be made.”
This brings into fore the question of
validity of the above provision. MCD on 3.10.1994 had
issued an office order setting out the policy for
medical treatment of its employees and retired
employees, including retiring and retired employees.
The office order is a short one and is reproduced in
extenso:-
Dated 3.10.1994
No: F.15(138)/CED(SU)/94/23702-73
OFFICE ORDER
The Special Officer exercising powers of the
Corporation has vide decision No. 4128/GW/Corp.
dated 27.9.1994 approved for providing medical
facilities to the pensioners of Municipal
Corporation of Delhi by the Corporation to the
following extent:-
i) All the medicines etc. including
diagnostics facilities as is required for the
treatment of the patient (Pensioners and their
families) will be provided to them free of
charge at the Hospitals/Dispensaries.
ii) The pensioners and their families when
referred from the dispensaries to the
hospitals for specialised treatment will be
attended to on priority basis. Such medicines
etc. which are considered essential for the
treatment, if not available, will be purchased
by the hospital authorities and provided to
the patients within a reasonable time.
iii) In order to identify the pensioners for
providing medical facilities, they will be
issued Identity Cards by the Department from
which one has retired or will be retiring.
2. However, in no case reimbursement of
expenditure incurred by a pensioner on
treatment will be made.”
6. Mr. Neeraj Kaul, Senior Advocate, who had
been appointed amices curiae in this case, assailed
Clause 2 of the Policy as being arbitrary, irrational
and violative of Articles 14 and 21 of the
Constitution of India. He submitted that under the
policy of the respondent/MCD had a clear obligation,
firstly to provide free medical aid and free medicines
from the dispensary/hospitals to its employees
including retired employees. Secondly, if the
medicines were not available, the hospitals were
obliged to purchase them within a reasonable time. In
the instant case, it is not disputed that the
medicines required for treatment were neither
available nor they were procured within a reasonable
time. In these circumstances, Clause 2 of the Policy,
which provides that there shall be no reimbursement of
expenditure incurred by the petitioner on purchase of
medicines of treatment was wholly arbitrary. It runs
counter to the policy and objective of the MCD to
provide medical aid to its employees. It seeks to
negate the obligations of the MCD and is contrary to
the terms of the office order. It was urged that
Clause 2, imposing a blanket ban on reimbursement of
cost of medicines, would contravene the right to self
preservation and life.
Learned counsel for the petitioner placed
reliance on Surjit Singh v. State of Punjab and
Ors. to urge that self
preservation of one’s life is the necessary
concomitant of the right to life, enshrined in Article
21 of the Constitution of India. It was fundamental
in nature, sacred, precious and inviolable. The
Supreme Court had also approved the observations of
the Punjab High Court in Surjit Singh v. State of
Punjab and Ors., to which I shall advert later.
Mr. Neeraj Kaul also placed reliance on State
of Punjab and Ors. v. Mohinder Singh Chawla and
Ors. , to urge that the
right to live is integral to the right to life and the
state has a constitutional obligation to provide
health services. To similar effect of the
observations by the Supreme Court in State of Punjab
and Ors. v. Ram Lubhaya Bagga and Ors., where the court while upholding
the right of the government to formulate a medical
policy and alter it depending on changed circumstances
emphasized on the right of a citizen to live under
Article 21 of the Constitution of India the obligation
of the state, in this regard being further reinforced
by the primary duty under Article 47 to secure health
to its citizens.
7. Mr. Navin Chawla in opposition to writ
petition submitted that it was not open for the
petitioner to claim a benefit under one part of the
office order and not accept the restriction or the bar
contained in the remaining part. He submitted that
the office order/policy had to be read as a whole.
The petitioner cannot rely on certain parts of the
policy to seek benefit and then seek to be absolved
from the provision, which contains a bar on
reimbursement. He submitted that policy offered
certain benefits and Clause 2 restricts those
benefits. He submits that there is a rationale for
making such a provision. The respondent in its wisdom
and as a matter policy have undertaken the obligation
to provide medical aid and facilities as available in
the hospitals and dispensary. However, for economic
and administrative reasons, it was decided to put a
ban on reimbursement of expenses incurred by employees
on purchasing medicines from outside. He relied on
the judgment of the Supreme Court in Ram Lubhaya’s
case (Supra) to urge that such a restriction was
justified considering the economic constraints and it
was a valid exercise of policy making. Further that
this court would not entertain a challenge to the said
policy. He submits that even in Ram Lubhaya’s case
right to revise the policy of reimbursement of medical
expenses and confining them to the rates of AIIMS
hospital, has been upheld.
8. Having noted the submissions on the part
of the petitioner and the amices curiae as also of the
respondent, the legal position which emerges based on
the judgments of the apex court may be noted:-
(I)(a) The right of a citizen to live under
Article 21 casts a corresponding duty and obligation
on the State, reinforced under Article 47, to secure
health to its citizen as its primary duty. No doubt
the Government is rendering this obligation by opening
government hospitals and health centres, but in order
to make it meaningful, it has to be within the reach
of its people, as far as possible, to reduce the queue
of waiting lists, and it has to provide all facilities
for which an employee looks for at another hospital.
(b) The state can neither urge nor say that
it has no obligation to provide medical facility. If
that were so, it would be ex-facie violative of
Article 21.
(c) The right of the State to change its
policy from time to time under changing circumstances
is neither challenged nor could it be. It is not
normally within the domain of any court, to weigh the
pros and cons of the policy or to scrutinize it 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. No state or country can have
unlimited resources to spend on any of its projects
that is why it only approves the projects to the
extent it is feasible. The same holds good for
providing medical facilities to its citizens including
its employees. Provision of facilities cannot be
unlimited. (State of Punjab and Ors. Ram
Lubhaya Bagga and Ors.-Supra).
(II) Right to live is integral to the right
to life and state has a constitutional obligation to
provide health facilities. In State of Punjab and
Ors. v. Mohinder Singh Chawla and Ors. the Supreme Court observed as
under:
“If the government servant has suffered an
ailment which requires treatment at a
specialized approved hospital and on reference
whereat the government servant had undergone
such treatment therein, it is but the duty of
the State to bear the expenditure incurred by
the government servant. Expenditure, thus,
incurred requires to be reimbursed by the
State of the employee.”
(III) Self preservation of ones life is the
necessary concomitant of the right to life enshrined
in Article 21 of the Constitution of India, which was
fundamental in nature, sacred, precious and
inviolable. (Surjit Singh v. State of Punjab and
Ors. Supra).
The Supreme Court also approved the
observations of the Punjab High Court in Sadhu R. Pall
v. State of Punjab reported at 1994(1) SLR 283,
where the court observed as under:-
“The respondents appear to have patently used
excusals in refusing full reimbursement, when
the factum of treatment and the urgency for
the same has been accepted by the respondents
by reimbursing the petitioner the expenses
incurred by him, which he would have incurred
in the AIIMS, New Delhi. We cannot lose sight
to factual situation in the AIIMS, New Delhi,
i.e., with respect to the number of patients
received there with heart problems. 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.”
9. It would be seen from the foregoing that
the right of a citizen to live, casts an obligation on
the State to provide health care, which is reinforced
under Article 47 of the Constitution of India. The
right of the State of formulate a policy for provision
of medical facilities and make changes therein
depending upon the circumstances and economic
constraints is recognised. The right of a citizen for
self preservation and to take appropriate and timely
decisions for provision of treatment and medicines as
required in emergency is recognised.
10. Let me now analyze and consider the
present case in the light of the foregoing judicial
pronouncements and principles as enumerated. The
petitioner being a retired employee was entitled to
avail of medicines and diagnostic facilities, free of
charge at the hospitals and dispensaries. The office
order also provided for specialised treatment on
priority basis from hospitals. It is not in dispute
that in the instant case the treatment was obtained
from the prescribed and recognised hospitals and
dispensaries. This is apparent from the essentiality
certificates issued by the Hindurao Hospital and the
Post Graduate Medical Institute of Sciences, Rohtak,
and the AIIMS. The question with which we are faced
is of reimbursement of the cost of medicines
prescribed by the Doctors of recognised hospitals,
where the petitioner’s deceased husband was receiving
treatment. The medicines were not available in stock
and were considered essential and required for
treatment. The hospital and medical authorities had
the obligation to purchase/provide the medicines
within a reasonable time as per office order.
Reasonable time would depend upon the exigency of
requirement. In case it is an emergency, then the
patient is certainly not expected to wait for a
reasonable time as per the usual procedure. In such
situations, the attendants of the patients or family
members are not expected to follow the procurement
procedure and are left with no option but to purchase
the same. Reference is invited to the observations of
the Supreme Court in Surjit Singh v. State of Punjab
noted earlier. In the instant case, the hospital
authorities have certified that the said medicines
were not available and had recommended the bills for
reimbursement. The respondents have not paid the same
on account of Clause 2, I am of the view that Clause 2,
which puts an absolute ban on reimbursement of
expenditure incurred by a pensioner on treatment is
arbitrary, irrational and liable to be struck down, as
violative of Article 14 and 21 of the Constitution of
India. The said clause is wholly inconsistent with
other provisions and seeks to negate the obligation on
the part of the MCD as provided for in the office
order, namely to provide treatment and medicines free
of charge and especially the obligation to purchase
medicines, if not available in the hospital stock
within a reasonable time. Once the obligation to
purchase the medicines, not available in the stock and
to provide them to the patient within a reasonable
time is there, the said right cannot be
taken away by providing a ban on reimbursement. The
said clause is wholly arbitrary and irrational.
Accordingly Clause 2 of the office order is struck
down, in so far as it imposes a complete ban on
reimbursement of medical expenditure. By striking
down Clause 2 of the aforesaid office order, it should
not be understood as whittling down the right of the
respondents to frame or formulate a policy including
one providing a restriction or ceiling on
reimbursement of expenses as long as the said policy
is not violative of Article 14 and 21 of the
Constitution of India.
11. In view of the foregoing discussion,
the writ petition is allowed. A writ of mandamus
shall issue to the respondents to pay forthwith to the
petitioner the sanctioned amount of Rs. 26,606/-. In
case payment is not made within one month from today,
the petitioner shall be entitled to interest @ 12%
p.a. on the said amount.
Writ petition stands allowed in above terms.