{"id":142021,"date":"2002-09-01T00:00:00","date_gmt":"2002-08-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-l-kamra-vs-lt-governor-and-ors-on-1-september-2002"},"modified":"2017-08-06T04:31:02","modified_gmt":"2017-08-05T23:01:02","slug":"m-l-kamra-vs-lt-governor-and-ors-on-1-september-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-l-kamra-vs-lt-governor-and-ors-on-1-september-2002","title":{"rendered":"M.L. Kamra vs Lt. Governor And Ors. on 1 September, 2002"},"content":{"rendered":"
Delhi High Court<\/div>\n
M.L. Kamra vs Lt. Governor And Ors. on 1 September, 2002<\/div>\n
Author: M A Khan<\/div>\n
Bench: M A Khan<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  Mahmood Ali Khan, J.  <\/p>\n
 1.       This  writ petition is filed under Article 226 of
\nthe  Constitution  of  India  for issue of  a writ  of
\nmandamus  directing the respondents 1 to 4 to  reimburse
\nthe  medical  claim of Rs.1,30,238.90 of the  petitioner
\nincurred on his treatment and coronary bypass surgery in
\nIndraprastha  Apollo Hospital, New Delhi with interest @
\n24%  per  annum and  issue of writ  in the  nature  of
\ncertiorari  quashing the order of the respondent bearing
\nno.705dated 9.8.1998 by which reimbursement claim  was
\ndeclined.\n<\/p>\n
 2. Material facts, in brief, are that the petitioner
\nis  working  as a Trained Graduate Teacher in Dau  Dayal
\nArya  Vedic  Senior Secondary School, Naya  Bans,  Delhi
\nwhich  is a Government aided school, and is governed  by
\nthe  Civil  Services (Medical Attendance) Rules in  the
\nmatter of medical attendance and reimbursement of claim
\nfor  treatment. The petitioner was suffering from (CAD)
\ntriple vessel coronary artery disease.   On  17.9.1996
\nangiography  was  doneon him in G.B. Pant  Hospital  (a
\nDelhi  Government  Hospital).  His condition  was  found
\nstable and  he was discharged with  instructions  “to
\nattendcardiology clinic room No.7 on Monday\/Friday and
\nto  collect  final CAG Report from Ex. II Lab and  report
\nafter  three  days.” The claim for expenses incurred  on
\nmedicine  and angiography done in the said hospital  was
\nlater on reimbursed to the petitioner. It is alleged in
\nthe petition that after a fortnight the condition of the
\npetitioner  started deteriorating and he had to undergo
\nelaborate  medical check up.  He consulted  Dr. M.P. Gupta
\non   5.10.1996and  9.10.1996.   Healso   consulted
\nDr. R.C. Bhatia  of  Swamy  Dayanand Hospital,  who  is  a
\ncardiologist  and  who advised him  to have  immediate
\ncoronary  bypass  surgery  as  he  was complaining   of
\nre-current  chest  pain and dysponea. The  petitioner
\ntried to take an early date for his surgery in AIIMS but
\ncould  not  succeed.   His  family then rushed him  to
\nIndraprastha  Apollo Hospital on 14.10.1996 where he was
\nput  under  observation for surgery on account of  his
\ncritical condition.  A coronary by-pass surgery was then
\nperformed  on him on 17.10.1996 since his case required
\nan emergency treatment. He was discharged from the said
\nhospital  on  25.10.1996.  On 11.1.1997 the  petitioner
\nsubmitted  medical bills to the Department of  Education
\nof  the Govt.  of NCT of Delhi for reimbursement of  the
\nmedical expenses  totalling Rs.1,30,238.90 incurred  by
\nhim  on the surgery and treatment at Indraprastha Apollo
\nHospital.  Out if it Rs.1,28,020\/- was for treatment and
\noperation in the hospital and the balance of Rs.2,218.90
\nwas  the  expenditure  incurred on  medicine. Despite
\nrepeated  reminders and legal notice dated 21.9.1999 the
\nrespondents   have  failed  to reimburse  the  claim.
\nContrarily  the respondents have rejected the claim  of
\nthe  petitioner on 9.8.1998 vide letter No.704 addressed
\nto the Principal of the School, where the petitioner was
\nworking,  without  assigning  any   reason.   Hence  the
\npetition.\n<\/p>\n
       3. On  noticing,  Mr. V.K. Sharma, Deputy Director  of
\nEducation  has filed a counter affidavit on  behalf  of
\nrespondents  1 to 3 i.e.  Lt.  Governor of Delhi,  Govt.
\nof  NCT of  Delhi,  Director of  Education  and  Deputy
\nDirector of Education (North).In the counter affidavit
\nit  was averred that the petitioner had started  taking
\ntreatment from G.B.  Pant Hospital and he was advised to
\ncollect angiography report after 7 days and to take  an
\nearly  date  for operation from CTVS Department of  the
\nhospital  but instead of following it up the  petitioner
\npreferred  to get his treatment from a private hospital
\nof his own sweet will. Therefore, he is not entitled to
\nreimbursement  of  the medical claim submitted by  him
\nsince  he  was neither referred to the said hospital  by
\nG.B.   Pant Hospital nor any other government  hospital.
\nThere  are  three  referral hospitals  as  per circular
\nno.F.27\/9\/97\/H&FW  dated  26.9.1997 read  with circular
\nNo.F.27(9)\/93-97\/M&PH\/PF   dated   15.9.1999of   the
\nGovernment  of National  Capital   Territory  of  Delhi
\n(Health and  Family Welfare Department) which are  (1)
\nBatra  Hospital and Medical Research Centre;  (2) Escort
\nHealth Institute and Research Centre; and (3) National
\nHeart  Institute and Research Centre.  There is no  rule
\nunder  which a government employee of the Govt. of  NCT
\nof  Delhi can claim reimbursement for treatment taken by
\nhim  in a private hospital of his own. The  petitioner
\nhimself is  to blame for not following the  advice  of
\ndoctors at G.B. Pant Hospital and not reporting there on
\nthe  scheduled date.  The petitioner was not  interested
\nin  his treatment in G.B.Pant Hospital because of  his
\nfalse  psychological  impression  that he would not  be
\ntreated\/operated  well there. He of his own went  to
\nM.C.D. Hospital again for advice for which  respondent
\nno.2  is not bound to reimburse the claim.  The case  of
\nthe  petitioner was considered without undue  delay  in
\naccordance  with  Central Services (Medical  Attendance)
\nRules. Indraprastha  Apollo  Hospital  is  a private
\nhospital  and is not recognised for treatment for  Delhi
\ngovernment  employees. The claim of the petitioner  was
\nnot  found  tenable.   The representation  made by  the
\npetitioner  was considered by the Director of  Education
\nand  was  referred  to Director of Health  Services  for
\nexpert opinion since the case of the petitioner was that
\nthe  treatment was taken at Indraprastha Apollo Hospital
\nin  emergency. The Director of Health Services  after
\nobtaining  the reports from  G.B. Pant Hospital  where
\ncoronary  angiography  of the petitioner  was  conducted
\nearlier was  of  the view that the petitioner had  not
\nfollowed  the  advice  given to him byte  doctors  of
\nG.B. Pant  Hospital  since  he was asked to  collect  the
\nangiography  report after 7 days and take an early  date
\nfor operation from CTVS Department of the said hospital.
\nInstead  of  following this advice the   petitioner
\npreferred  to  get  treatment at  the  private hospital
\nwithout being referred  to  by   any doctor of   any
\ngovernment  hospital  on the ground of emergency.   The
\nState Government   employees are  provided medical
\nattendance  and facilities  in various  hospitals  and
\ndispensaries  and in certain specified cases as per  the
\nprescribed rules, the doctors of the government hospital
\nrefer  typical and emergent cases to  listed\/recognised
\nhospital  for which reimbursement facility is  available
\nsubject to prescription of such cases to these private
\nhospitals  also.   The claim  of  the petitioner   was
\nrejected  in accordance with the Civil Services (Medical
\nAttendance) Rules.\n<\/p>\n
       4. In  the rejoinder the petitioner controverter the
\ncase pleaded in the counter affidavit. It was submitted
\nthat  according to the Circular No.F.27\/9\/97-H&FW  dated
\n26.9.1997  Central  Services (Medical Attendance)  Rules
\nwere  applicable  to the employees of the Government  of
\nN.C.T. of  Delhi  till  new rules  were  framed.   The
\nrespondents  have concealed circular
\nno.G.I.,M.H.&F.W.,O.M.No.S.14024\/13\/96M.S.  dated  1st
\nJuly  1997 of CS (MA) Rules according to which Circular
\nNo. G.I.M.H.    &    F.W.,    O.M.No.110011\/16\/ 94-GHS\/
\nDesk II\/CMO(D)\/CGHS(P)  dated 18th September 1996 of CGHS
\nas  it is was adopted in the Central Services(Medical
\nAttendance)  Rules  and that CGHS  circular declared
\nIndraprastha  Apollo Hospital as a recognised  hospital.
\nHe  also  alleged that G.B. Pant Hospital did  not  enjoy
\ngood  reputation  on  account of a number  of  death  in
\ncoronary  by  pass  surgery cases and he could not  get
\nearly  date  of operation  in AIIMS. It  was further
\nsubmitted  that the  Supreme Court has laid  down  that
\nright to health is an integral part of right to life and
\nrespondents have deprived the petitioner of his right to
\nlife  as enshrined in Article 21 of the Constitution  by
\nrejecting  the medical reimbursement claim and  the
\nrespondents  have  further  violated Article 14 of  the
\nConstitution  as  in  a number of  other  cases similar
\nreimbursement claim has been allowed.\n<\/p>\n
        5. In  an additional affidavit Gyanendra Srivastava,
\nDirector   of  Education  submitted   that  as per  the
\ninformation  supplied  by  G.B. Pant Hospital all  the
\npatients  who needed emergency surgery were  immediately
\noperated  upon in  the hospital  and no  patient  was
\nreferred  to  any other hospital.   After  investigation
\nroutine patients were discharged from the Department of
\nCardiology of the said hospital and referred to CTVS OPD
\nfor  giving  dates for surgical operation.  The waiting
\nlist  of  CTVS Department of the said hospital was  up to
\n6-8  weeks.  The G.B. Pant Hospital further informed that
\nusually a  patient who needed emergent surgery was  not
\ndischarged  and that  he  was referred  to  a surgeon
\nimmediately  unless the patient refused or wanted to  go
\nto any other hospital. Coronary angiography was done on
\nthe  petitioner on 17.9.1996 and he was discharged  and
\nwas  referred  to CTVS OPD for an early surgery.   After
\nangiography  the  petitioner  did  not report back  to
\nG.B. Pant  Hospital  and went to  Indraprastha  Apollo
\nHospital  on  the  advice  of  Dr. M.P. Gupta,  Consultant
\nCardiologist  of  Ganga Ram Hospital. It  was further
\nstated that the government employees could have surgery
\nat G.B. Pant Hospital or if they are apprehensive and did
\nnot want surgery in that hospital they could be referred
\nto  AIIMS  but the patient (the petitioner) opted for  a
\nprivate hospital.  The copy of the letter received from
\nG.B. Pant Hospital was also enclosed.\n<\/p>\n
       6. The argument of the counsel for the petitioner is
\nthat  the treatment at Indraprastha Apollo Hospital  was
\ntaken by the petitioner in an emergency situation as his
\ncondition  was deteriorating day by day and any delay in
\nsurgical  operation  could have been fatal.  He further
\nsubmitted   that  even otherwise  Indraprastha  Apollo
\nHospital  was a recognised hospital under Civil Services
\n(Medical  Attendance)  Rules  and   the various  office
\ncirculars  and government orders issued the reunder which
\nare  applicable to  the CGHS employees of  the Central
\nGovernment  and which the Government of NCT of Delhi has
\nextended to cover its employees.  He further argued that
\nthe  right  to life and health was a  fundamental  right
\nenshrined  in  Article 21 of the Constitution of  India,
\ntherefore,  the petitioner had a right to avail of  the
\nbest medical facilities which were available in the city
\nfor  saving his life.  According to him, in a number  of
\ncases  the  courts  have allowed  reimbursement of  the
\nmedical claim of  the government  employees who  had
\nundertaken  treatment in a non-governmental\/unrecognised
\nhospital  in  similar emergency situation.   Lastly,  he
\ncontended   that  the  petitioner   should   have   been
\nreimbursed  the claim to the extent he would have  it
\nreimbursed   in case  of   treatment  at  a  government
\nhospital.   He referred to the judgments in Surjit Singh
\nVs.   State  of Punjab & Others, ,  Sadhu
\nR. Pall Vs.  State of Punjab & Others, 1994 (1) SLR 283,
\nWaryam Singh Vs.  State of Punjab & Others, 1996(4) SLR
\n177  (P&H)  (DB),  State  of Punjab &  Others  Vs.   Ram
\nLubhaya Bagga & Others, , Narendra  Pal
\nSingh  Vs.  Union of India & Others, 1999 (3) AD (Delhi)
\n769  and  a  judgment  of a single bench  given in  CWP
\nNo.5317\/99  Ms. S. Janani Vs.  Union of India  & Another
\ndecided on 18.12.2000 in support of his argument.\n<\/p>\n
       7. Controverting the argument of the counsel for the
\npetitioner,  the  counsel  for the respondents, on  the
\nother hand, argued that Indraprastha Apollo Hospital was
\na  private  hospital  and  it was not  on  the list  of
\nrecognised  hospitals  under   Civil  Services(Medical
\nAttendance)  Rules  applicable to the employees of  the
\nGovernment   of NCT  of   Delhi  for  coronary  bypass
\nsurgery.  The petitioner had surgery in that hospital
\nwithout being referred to by his medical attendant  or
\nany  of the government hospitals. Therefore, he was  not
\nentitled  to the reimbursement of the claims for medical
\nattendance, surgical operation and the medicine incurred
\nby  him in Indraprastha Apollo Hospital.  Above all,  it
\nis contended, it is not a case of an emergency operation
\non  the petitioner  for  saving   his life  since  the
\npetitioner  went to Indraprastha Apollo Hospital on  the
\nadvice of Dr. M.P. Gupta, cardiologist consultant of Ganga
\nRam  Hospital of his own.  Furthermore, it is submitted,
\nthe  petitioner first went to G.B. Pant Hospital where he
\nhad coronary angiography done and he was discharged with
\nthe  instructions  for follow up.  He was  advised  to
\ncontact the  CTVS,  OPD for getting en early  date  for
\nsurgical  operation  and  collect  the report but  the
\npetitioner  did not  follow up these  instructions  and
\ninstead opted to go first to M.C.D.  Hospital and  then
\nconsulted  doctors of Ganga Ram Hospital and  thereafter
\ngot  himself  admitted in Indraprastha Apollo Hospital
\nwhere  he  had coronary bypass surgery. Civil Services
\n(Medical  Attendance)  Rules  and   the various  office
\ncirculars  which have been issued were applicable to the
\npetitioner  and in accordance with them the  petitioner
\nwas  not  entitled to the reimbursement of the expenses
\nincurred   on  surgery, treatment   and   medicine   in
\nIndraprastha   Apollo  Hospital.    She justified   the
\nrejection  of the medical claim of the petitioner by the
\nrespondents.   She  further  argued that  the  case  law
\nrelied upon  by the petitioner related to the cases  of
\nPunjab Government employees who were governed by medical
\nattendance  rules  and the   office  orders  of  Punjab
\nGovernment.  It was contended that the Punjab Government
\nhad  allowed  its  employees to have  some  specialised
\ntreatment of serious diseases like heart ailment in some
\nrecognised   hospitals situated   outside  the   State
\nincluding  a few hospital government and private at  New
\nDelhi since similar facilities were not available within
\nthe  State,  which  is not  a case  here.   Therefore,
\nreliance  on  Punjab  case law cited on his  behalf  is
\nmisplaced she has argued.\n<\/p>\n
      8.  The  short questions that arise for decision  in
\nthis  civil  writ petition are (1) whether  Indraprastha
\nApollo Hospital  is  a  recognised  hospital for  the
\ntreatment  of coronary by-pass surgery of the  employees
\nof  the Government  of N.C.T. of  Delhi  under  Civil
\nServices  (Medical Attendance) Rules and the  government
\norders and circulars issued hereunder; (2) whether the
\npetitioner had undertaken the treatment and was operated
\nupon  for coronary by-pass surgery in Indrapratha Apollo
\nHospital  as  an  emergency case;  and (3)  whether  the
\npetitioner  is entitled  to the  reimbursement of  the
\nmedical claim on  account  of  the  expenses of  his
\ntreatment  and operation  done at  Indraprastha  Apollo
\nHospital  on  the  ground that the right to life  was  a
\nfundamental  right  enshrined  in   Article  21 of  the
\nConstitution  of India and the petitioner has a right of
\nself-preservation  and availing of the better medical
\nattendance  and facilities  available in  a private
\nhospital,  in  this case, Indraprastha Apollo  Hospital,
\nfor saving his life.\n<\/p>\n
      9.  The  first question first.  The petitioner claims
\nthat  Indraprastha  Apollo  Hospital   is  a  recognised
\nhospital  for  the  treatment of  Central   Government
\nemployees covered by CGHS in Delhi and the Government of
\nN.C.T. of  Delhi  has extended   CGHS  Rules to  its
\nemployees   till  the  rules   under  Delhi   Government
\nEmployees Health Scheme are framed.  It is argued by the
\ncounsel for  the  petitioner that  the petitioner  was
\nreferred    to Indraprastha  Apollo   Hospital   by
\nDr. R.C. Bhatia  who is heart specialist working in  Swamy
\nDayanand  Hospital of M.C.D.  at Shahdara, therefore, he
\nwas  entitled to the reimbursement of the full claim  of
\nthe  expenses for treatment and the operation  conducted
\nin  Indraprastha  Apollo Hospital.  The petitioner  has
\nreferred  to  Swamy’s book on Medical  Attendance  Rules
\nPage   122   where   a copy of   G.I..    M.H.    &
\nF.W.,O.M.No.S.11011\/16\/94   -CGHS\/Desk-II\/CMO(D)\/CGHS(P)
\ndated 18.9.1996 has been extracted which provided a list
\nof recognised private hospitals\/diagnostic centres under
\nCGHS  in  Delhi for  specialised  and general purpose
\ntreatment  and diagnostic   procedures.   The relevant
\nportion of this Circular is given below:\n<\/p>\n
  ”  The undersigned is directed to
\nsay  that  the issue of  recognition  of
\nprivate hospitals for treatment of  CGHS
\nbeneficiaries  under  CGHS,   Delhi   and
\nfixation  of ceiling rates has been under
\nconsideration of the Government for quite
\nsome  time.   It has now been decided  to
\nrecognize the   under mentioned
\nhospitals\/diagnostic centres      for
\ndifferent     specialities    (treatment\/
\ndiagnostic  procedures) mentioned against
\ntheir names:-”\n<\/p>\n
        10. Below  this  the name of  Indrapratha  Apollo
\nHospital  is  mentioned at s.no.18 for specialised  and
\ngeneral purpose  treatment and diagnostic  procedures.
\nRelying upon this Government circular it is argued that
\nIndraprastha  Apollo Hospital being a recognised private
\nhospital  for  treatment  of   CGHS  beneficiaries   the
\npetitioner  has right to   take  treatment  from  this
\nhospital  and  reimbursement of the full claim for  the
\nexpenses  incurred  on the surgery  and  the  medicines
\nthere.\n<\/p>\n
       11. Conversely,  counsel  for respondents 1 to 3  has
\ncontended  that Central Services  (Medical  Attendance)
\nRules  apply  to the petitioner and other  employees  of
\nGovernment  of N.C.T. of Delhi but these rules do  not
\napply  to  the Central Government  employees who  are
\ncovered by CGHS in Delhi.  Reference is made to Rule  1
\nof  Central Services (Medical Attendance) Rules.  Note 2
\nappended  to  sub-rule(ii) of Rule 1of  these  Rules
\nprovide that “these rules do not apply to:\n<\/p>\n
 (i)   xxxx  <\/p>\n
 (ii)   xxxx  <\/p>\n
 (iii)   xxxx  <\/p>\n
 (iv)   xxxx   <\/p>\n
 (v)   xxxx  <\/p>\n
 (vi)  Government servants who are
\ngoverned by the Central Government Health
\nScheme while in stations where the Scheme
\nis functioning.”\n<\/p>\n
      12.  She  has also  referred to Page 116 and 117  of
\nSwamy’s book on Medical Attendance Rules.  At page  116
\nit  has been  provided  that the  Central  Government
\nservants  and  members of their family residing outside
\nthe area covered by CGHS in the Union Territory of Delhi
\nand  those  who come  to   Delhi  may receive medical
\nattendance  either at Willingdon Hospital or  Safdarjung
\nHospital  which are  under  the  direct  administrative
\ncontrol of  Central  Government and further  that  “the
\nemployees  of Delhi Administration and members of  their
\nfamilies  are, however, continue to receive treatment at
\nthese  two  Central  Government hospitals  only on  the
\nadvice of their authorised medical attendants”. At page
\n117  in respect  of  AIIMS it is  provided  that  this
\nInstitute  will be  treated as a  referral  institute\/
\nhospital  in respect of the persons covered under the CS
\n(MA)  Rules.   At  page 118 of the  same  Book it  is
\nprovided   that  Primary   Health  Centre,   Najafargh,
\nSt. Stephens  Hospital, Delhi, Batra Hospital and Medical
\nResearch  Centre,  Escort Health Institute and Research
\nCentre and National Heart Institute and Research Centre
\nhave  been  recognized for  the  treatment  of Central
\nGovernment  servants  and members of their family  under
\nRule  2(d)  of Central Services  (Medical  Attendance)
\nRules.\n<\/p>\n
       13. Counsel for respondents 1 to 3 has also filed the
\ncopies of  the circulars issued by the  Government  of
\nN.C.T. of  Delhi  on26.9.1997  and15.9.1999.   The
\ncircular no.F.27\/9\/97\/H&FW dated 26.9.1997 was issued in
\npursuance  to  a scheme formulated by the Government  of
\nN.C.T. of Delhi for providing medical facilities to its
\nemployees and other beneficiaries.  The relevant extract
\nof this circular is reproduced below:\n<\/p>\n
  ”   In continuation of   this
\nDepartment  letters of even number  dated
\n13.3.1997,  13.5.97  and 22.7.97  on  the
\nabove  noted  subject, I am  directed  to
\nin form you that the various queries were
\nraised by  different departments  with
\nregard to implementation of this scheme.
\nThese have  been   considered and  the
\nfollowing procedure for providing medical
\nfacilities\/reimbursement thereof has been
\ndecided in  consultation with office  of
\nFinance    Department\/Controller      of
\nAccounts.\n<\/p>\n
 (1) All the head of offices shall
\nensure that monthly contribution from the
\nemployees  whoopt  for this  scheme  is
\ndeducted  from their  respective  salary
\nlatest by  31.10.1997 to   make   them
\neligible  for  reimbursement  under  this
\nscheme.  In case of a pensioner all head
\nof  the offices\/DDOs where the pensioner
\nlast  served,  shall receive five  yearly
\ncontribution   or  at least  one   year
\ncontribution  from the pensioners at  the
\nrate already communicated against TR-5.\n<\/p>\n
 (2)  Since  the scheme was  made
\neffective  from 1.4.1997   but all  the
\nemployees  could not get Health Cards  on
\nthat  date, the employees may be  treated
\nas eligible during the period from 1.4.97
\nto the date they get their health-cards.\n<\/p>\n
 (3)  Central   Services (Medical
\nAttendance)  Rules  are applicable  under
\nthis Delhi Govt.  Employees Health Scheme
\ntill new rules are framed.\n<\/p>\n
 (4)  Reimbursement   scheme  duly
\nsupported  by the prescribed  certificate
\nfrom authorised medical attendents of the
\nDelhi Govt. Hospitals\/St. Stephens
\nHospitals   and   other    referral   is
\nadmissible to the members of this scheme.\n<\/p>\n
 (5)    All     the    cases    of
\nreimbursement  shall  be   received   and
\nprocessed in the office where a member of
\nthe  scheme  is working  or  from  where
\nhe\/she retired.\n<\/p>\n
 (6)   All   the  heads of   the
\nDepartment  are,  therefore,  advised  to
\nmake  adequate budget provision on  this
\naccount in the Revised Estimates for the
\ncurrent financial year.\n<\/p>\n
 Monthly contribution from  the
\nmembers of this scheme are required to be
\ndebited  in   the   following head   of
\naccount:-  Major  Head”210″  Medical&
\nPublic Health 01-Urban Health Services,
\n800-Other Receipts.\n<\/p>\n
 Receipts  in  view   of  Medical
\nfacilities  provided  to  the  employees\/
\npensioners   of Delhi Government   and
\nreimbursement  on  this account  may  be
\ndebited in respective salary head.   The
\nfollowing  hospital  under Government  of
\nN.C.T. of  Delhi   are  recognised  for
\ntreatment of the members of the scheme:”\n<\/p>\n
       14.  Below   this  a list  of  all the   hospitals,
\nAllopathic,  Ayurvedic, Homoeopathic dispensaries run by
\nthe  Government of  N.C.T.  of Delhi  has  been  given.
\nThereafter  the portion  of   the  circular,  which  is
\nrelevant, reads as under:\n<\/p>\n
…………………….\n<\/p>\n
The following      hospitals\/
\ndiagnostic  centres have been  recognised
\nas  referral hospitals for the members of
\nthe scheme:\n<\/p>\n
 HEART DISEASE  <\/p>\n
 Escort Health  Institute and Research Centre
\nNational<\/p>\n
Heart  Institute and Research Centre.\n<\/p>\n
Batra Hospital and Medical Research Centre;\n<\/p>\n
    15.    The   office   circularNo.F.27(9)\/93-97\/M&PH\/PF
\ndated  15.9.1999  was  issued  for  providing  rates  of
\ncharges of  by-pass surgery CAB in respect  of private
\nhospitals  recognised  at par with CGHS.   The relevant
\nportion of this circular is extracted below:\n<\/p>\n
  ”   I  am   directed  to  forward
\nherewith  a  copy  of Order  based   on
\nMinistry   of  H&FW,   Govt.   of   India
\nO.M.No.S.14025\/45\/94-MS dated22-04-98,
\nwhich  contains the   rate  of Coronary
\nBy-Pass  Surgery  for  the following
\nrecognised Private Hospitals:\n<\/p>\n
 1.   Batra  Hospital and  Medical
\nResearch Centre;\n<\/p>\n
 2.   Escort Heart Institute  and
\nResearch Centre   <\/p>\n
 3.   National Heart Institute and
\nResearch Centre.”\n<\/p>\n
  16.      Counsel for respondents 1 to 3 referring to these
\noffice circulars  has argued that only  three private
\nhospitals  (1)Batra  Hospital  and  Medical Research
\nCentre;  (2)  Escort  Health Institute  and Research
\nCentre;  and (3) National Heart Institute and Research
\nCentre are  the  recognised  hospitals and  diagnostic
\ncentres where the employees of Government of N.C.T.  of
\nDelhi  may  be referred to for treatment of  the  heart
\ndisease including  coronary  by-pass surgery. It  was
\nstrenuously  urged  that  Indraprastha Apollo Hospital
\nbeing  a  private hospital is not recognised  under  the
\nC.S.   (M.A.) Rules and by the Government of N.C.T.   of
\nDelhi for treatment and surgery of heart diseases so the
\nrespondents  1to 3 rightly declined to  reimburse  the
\nmedical claim submitted by the petitioner.  She has also
\nargued that  as appears from the report of  G.B.   Pant
\nHospital  dated 30.8.2001  sent  to  the  Director   of
\nEducation  –  respondent  no.3, who  had  submitted  it
\nalong with his additional affidavit dated 7.9.2001, it is
\nclear  that in case a patient is not willing to have his
\nsurgery at G.B. Pant Hospital a reference was being made
\nto AIIMS or to the private hospitals also.  According to
\nher,  the petitioner, in this case, did not report  back
\nto  G.B. Pant Hospital and get his case referred to AIIMS
\nor any other recognised private hospitals like (1) Batra
\nHospital and Medical Research Centre;  (2) Escort Health
\nInstitute  and Research Centre; and (3) National  Heart
\nInstitute  and Research  Centre, therefore, he had  no
\nright to claim reimbursement of the expenses incurred on
\ntreatment  at  Indraprastha  Apollo   Hospital.  It  is
\nsubmitted  that no  government hospital  or  authorised
\nmedical attendant  of the petitioner as per  rules  has
\nreferred  his case for treatment at Indraprastha  Apollo
\nHospital.   It is also not a case of emergency treatment
\nat  the said hospital. For all these reasons she  has
\njustified  the rejection of the  medical  reimbursement
\nclaim submitted by the petitioner.\n<\/p>\n
     17.   The   respondents  1  to 3  have   filed   Delhi
\nGovernment  circulars which were issued in 1997 and 1999
\nafter the formulation and implementation of a scheme for
\nits  own  employees  on the pattern of C.G.H. Scheme  of
\nCentral Government  employees. The petitioner had  his
\nsurgery and treatment at Indraprastha Apollo Hospital in
\nthe  year  1996.  Therefore, these circulars are not  of
\nmuch help in deciding the case of the petitioner.  Delhi
\nGovernment  has not framed its own rules under the  new
\nhealth Scheme. In the absence of the rules framed under
\nits  own scheme, the government was adopting the  office
\ncirculars  issued by the Central Government under  Civil
\nServices  (Medical Attendance) Rules and CGHS  to  apply
\nthem, with  or  without   modification,  on  its   own
\nemployees.   No Delhi Government order\/office circular
\nhas been produced or brought to the notice of this Court
\nby    which    office circular    G.I..    M.H.     &
\nF.W.,O.M.No.S.11011\/16\/94   -CGHS\/Desk-II\/CMO(D)\/CGHS(P)
\ndated  18.9.1996  (relied  upon by the petitioner)  was
\nadopted by  Delhi  Government for  applying  over  its
\nemployees.   Till  the Rules are  framed  under  Health
\nScheme of  Delhi  Government, C.S.(M.A.)  Rules  shall
\ncontinue to apply to Delhi Government employees.\n<\/p>\n
       18. In  Swamy’s  book on Medical Attendance Rules  at
\npages 54   to   57 extract   of G.I.M.H.&F.W.OM
\nS14025\/55\/92-MS dated 19th August 1993 and S-14025\/43\/94
\nMS  dated  31st October 1994 is  given.   These  office
\norders were applicable to Delhi Government employees in
\n1996  when the petitioner had his surgery.  The relevant
\nportion of these office circulars is reproduced below:\n<\/p>\n
     (15) Recognized private hospitals and
\n    approved  rates for Coronary Bypass Surgery –
\n    The approval  of the Government is conveyed
\n    for reimbursement of medical expenses  under
\n    Central   Services   (Medical   Attendance)
\n    Rules,1944, for  specialized treatment  like
\n    Heart,  Kidney,  Coronary, etc., at par  with
\n    CGHS  beneficiaries as only in these cases a
\n    package   deal  arrangement   with  private
\n    hospitals  for  CGHS beneficiaries exist  at
\n    present. The  rates  of Coronary   Bypass
\n    Surgery  for all recognized private hospitals
\n    will be as under:\n<\/p><\/blockquote>\n
    _  __________________________________________
\n    Rates to be Entitlement charged by the
\n    private recognized hospital
\n    ___________________________________________<\/p>\n
    I. Rates for CBG<\/p>\n<\/blockquote>\n
    (a) General ward (basic pay
\n        up to Rs.2,500)                    64,000<\/p>\n<\/blockquote>\n
    (b) Semi-private ward (basic
\n        pay Rs.2,501 up to Rs.3,500)       72,000<\/p>\n<\/blockquote>\n
    (c) Private ward (basic pay
\n        Rs.3,501 and above)               89,000<\/p>\n
    II. Rates for Coronary
\n        Angiography<\/p>\n
     (a) General ward8,                      500<\/span>\n<\/p><\/blockquote>\n
     (b) Semi-private ward                 9,000\n<\/p><\/blockquote>\n
     (c) Private ward                     10,500<\/p>\n
    III. Rates for other
\n         investigations<\/p>\n
         Stress Thallium Test              6,000
\n         Rest Muga Study                   1,000
\n         Stress Muga Study                 1,100
\n         Droppler Echo Cardiography          700<\/span>
\n         Holter Monitoring                   800<\/span>
\n    ___________________________________________ <\/p>\n<\/blockquote>\n
     2.    The above-mentioned revised rates
\n    are subject to the following conditions:-\n<\/p><\/blockquote>\n
     (i) The  rates for CABG, Coronary,
\n    Angiography and other investigations will be
\n    regulated on package deal basis.  The package
\n    for CABG  and Coronary  Angiography  include
\n    room  rent from the date of admission to  the
\n    date   of discharge,    service charges,
\n    nursing\/medical    care, surgeon’s    and
\n    anaesthetist’s fee, operation theatre charge,
\n    etc.,  but does not include diet,  cosmetics,
\n    toiletry,  telephone  charges,   etc.,  which
\n    would be borne by the CS (MA)’s beneficiaries
\n    themselves.\n<\/p><\/blockquote>\n
     (ii)  The  CS   (MA)’s  beneficiaries
\n    undergoing treatment  for Angiography,  CABG
\n    and other specified  tests in  the  private
\n    recognized hospitals, will be reimbursed  to
\n    the extent mentioned in this OM.  The amount
\n    charged  over and above the prescribed  rates
\n    will have to be borne by the beneficiaries.\n<\/p><\/blockquote>\n
     (iii)  The above rates will remain in
\n    force  for a period of 2 years and no request
\n    for revision  of rates will  be  entertained
\n    during this period.\n<\/p><\/blockquote>\n
     (iv)  Reimbursement in respect of  CS
\n    (MA)  beneficiaries will  be   made  at  the
\n    above-mentioned rates or the rates charged by
\n    the hospital, whichever is less.\n<\/p><\/blockquote>\n
     3. There will  be  no  distinction
\n    between  the first and the subsequent  bypass
\n    surgery  and  the  amount proposed would  be
\n    applicable to any number of bypass surgeries.\n<\/p><\/blockquote>\n
     4. The amount mentioned above  will
\n    be paid directly to the recognized hospital
\n    by Department\/Ministry concerned,   from
\n    “Service Head”.\n<\/p><\/blockquote>\n
     5. A list of private recognized for
\n    Coronary  Angiography and bypass surgery on a
\n    referral basis is given in the Annexure.\n<\/p><\/blockquote>\n
     6. The admission in these hospitals
\n    will  be regulated on the package deal basis.
\n    The package will include professional charges
\n    like surgeon’s fee, anaesthetist’s fee, etc.,
\n    hospital  stoppage charges  for  the  total
\n    period of stay from admission till discharge,
\n    medication and food.\n<\/p><\/blockquote>\n
     7. The above rates shall come  into
\n    effect immediately.\n<\/p><\/blockquote>\n
     8. The procedure for obtaining  the
\n    treatment  for  Coronary  Bypass  Surgery  in
\n    recognized private hospitals   will  be  as
\n    follows:-\n<\/p><\/blockquote>\n
     (i) On  the  basis  of  advice   of
\n    Cardiologist  of  either  a Central\/State\/UT
\n    Government hospitals, a referral letter is to
\n    be issued by the competent authority of  the
\n    Ministry\/Department.   The referral  letter
\n    will  indicate the name of the hospital where
\n    the treatment would be taken, the amount that
\n    would    be    paid\/reimbursed    and    the
\n    Department\/Ministry which will  settle  the
\n    claim for payment\/reimbursement.\n<\/p><\/blockquote>\n
     (ii) All Central Government employees
\n    should  apply for permission to the concerned
\n    Department\/Ministry along with a certificate
\n    of their pay particulars.\n<\/p><\/blockquote>\n
     (iii)  The choice of the  recognized
\n    hospital  where the Government servant  would
\n    like to avail of the treatment is left to the
\n    beneficiary himself subject to the condition
\n    that  no travel expenses will be reimbursable
\n    if Coronary  Artery Bypass Graft  facilities
\n    are existing in that particular city.\n<\/p><\/blockquote>\n
     (iv) All recognized private hospitals
\n    will   be required   to maintain   proper
\n    documentation  and records in  respect   of
\n    beneficiaries  admitted  in  general,  semi-
\n    private  wards  for scrutiny   as and  when
\n    required by the Government.\n<\/p><\/blockquote>\n
     9. All the recognised  institutions
\n    are requested to confirm immediately that for
\n    the general ward patients, the charges would
\n    be kept within the ceiling prescribed.  <\/p><\/blockquote>\n
     G.I.M.H.&F.W.OM S14025\/55\/92-MS dated
\n    19th  August 1993 and S-14025\/43\/94 MS  dated
\n    31st October 1994  <\/p>\n
        ANNEXURE  <\/p>\n
     List of private hospitals recognized for
\n    Coronary Bypass Surgery  <\/p>\n
       _________________________________________
\n    Name of City  Name of hospital
\n    _________________________________________<\/p>\n
    Delhi   1.  Batra Hospital and
\n                             Medical Research Centre<\/p>\n
                         2.  National Heart Institute<\/p>\n
                         3.  Escort Heart Institute
\n                             & Research Centre <\/p>\n
    19.    In   accordance with these circulars,   the
\ngovernment  servants on whom CS (MA) Rules applied  were
\nentitled  to  have  their  case referred  to  a private
\nhospital  recognised for coronary angiography and bypass
\nsurgery as given in Annexure. The choice of recognised
\nhospital  where the  government servant would like  to
\navail  of  the treatment was left  tithe  beneficiary
\nhimself.  As per annexure, in Delhi, 3 private hospitals
\nwere  recognised for coronary bypass surgery.  They were
\nBatra  Hospital and Medical Research Centre (2) National
\nHeart  Institute  and  (3) Escort  Heart  Institute  and
\nResearch Centre.\n<\/p>\n
      20.  In  case the  petitioner did not  want to  have
\nsurgery at G.B. Pant Hospital he in 1996 had the  choice
\nto  have  his  case  referred to AIIMS or  any of  the
\nabove named  3 private hospitals recognised for coronary
\nbypass surgery and have the expenses reimbursed as  per
\nthe  package  approved by the government.   Instead  of
\navailing   of this  facility he   chose   a private
\nunrecognised hospital at his own peril. Counsel for the
\npetitioner  has not  been able to refer to any of  the
\nrules  of  Civil Services (Medical Attendance) Rules  or
\nthe  government circulars applicable to the employees of
\nGovernment   of N.C.T.  of   Delhi  which  permit  the
\npetitioner  to have his surgery in a hospital other than
\nthe  hospitals, government or private, which are not  a
\nrecognised by the Government of N.C.T. of Delhi.  It is
\npertinent  to  mention here  that  even  AIIMS is  not
\nrecognised hospital for treatment of heart diseases.  It
\nis  only a referral hospital and employee of  Government
\nof  N.C.T.   of Delhi like  the  petitioner  could  be
\nreferred  to AIIMS for such treatment by the  government
\nhospitals  like G.B. Pant Hospital which had the facility
\nfor coronary by-pass surgery available.\n<\/p>\n
        Though  the  petitioner has alleged that he  was
\nreferred to Apollo Hospital for surgery by Dr. R.C. Bhatia
\nof Swamy Dayanand Hospital, Shahdara (a hospital of MCD)
\nbut  he has not been able to produce anything to  show
\nthat  Dr. Bhatia was his authorised medical attendant and
\ncompetent  to  make reference of his case to are ferral
\nrecognised\/unrecognised private\/government hospital  to
\nentitle the petitioner to the reimbursement of claim.\n<\/p>\n
      21.  In  this context circular of the  Government  of
\nN.C.T. of Delhi No.  F 335\/18\/97-H&FW\/333 dated 8th May
\n1997  may  also be noted which provided free  facilities
\nfor  treatment at Indraprastha Apollo Hospital “for  the
\npatients  to  be sponsored by the Government of Delhi”.
\nIn  accordance with this circular the patients would  be
\nsponsored  by  Medical Superintendents of Lok Nayak  Jai
\nPrakash Narain Hospital, G.B. Pant Hospital, Deen  Dayal
\nUpadhaya Hospital, G.T.B. Hospital and Director of Health
\nServices, Delhi.  Percentage of beds in general ward and
\neven  in  private  nursing  home for  treatment of  the
\npatients  sponsored  by the Government of Delhi free  of
\ncost  is  provided.   The  patients  so sponsored  were
\nentitled to free consultation, bed, diet, investigation,
\nnursing,  medicines consumables under this scheme.  This
\nscheme is  for sponsoring the patients in  general  and
\ndoes not cover the employees of the Government of N.C.T.
\nof Delhi though the scheme does not specifically exclude
\nsuch  employees being referred to  Indraprastha  Apollo
\nHospital  for  free bed under this scheme.  But no  such
\nscheme was available in 1996 at the time of surgery  of
\nthe petitioner.\n<\/p>\n
      22.  After  careful consideration of the CS (MA) Rules
\nand  the  office  circulars copies of  which  have  been
\nproduced  by  both  the parties and others  referred  to
\nabove  I am constrained to hold that Indraprastha Apollo
\nHospital was not a hospital recognised by the Government
\nof  N.C.T.  of Delhi for the treatment\/surgery including
\ncoronary  by-pass  surgery  of its  employees and  the
\npetitioner.\n<\/p>\n
      23.  There   is  also dispute  as  to   whether   the
\npetitioner  went  to Indraprastha Apollo Hospital as  an
\nemergency case and whether he was operated upon there in
\nthat  condition.   The petitioner   has  placed  strong
\nreliance  upon a certificate issued by the  Indraprastha
\nApollo Hospital  and  his discharge summary  which  are
\nAnnexures C and D of the writ petition. The certificate
\nstates as under:\n<\/p>\n
  “Certified that the patient Madan
\nLal  Kamra,  S\/o  Sh. F.C. Kamra, R\/o  24F
\nGASTA,B-3,  Paschim Vihar, New Delhi  110
\n063  of DDAV, Sr. Secondary  School  Naya
\nBans,  Delhi-110 096 visited the Hospital
\non  12\/10\/1996.  After  examining   the
\npatient it was found that he needed early
\nsurgery.   He was admitted on  14\/10\/1996
\nand  was  operated on 17\/10\/1996.  He  is
\nadvised for  bed rest for 2 months  up to
\n20\/12\/1996.”\n<\/p>\n
    24.    The  discharge  summary after giving the name  of
\nthe  petitioner and some other particulars stated  that
\nthe    final   diagnosis   of the   petitioner    was
\n“Atherosclerotic  triple vessel coronary artery disease,
\ncritical  left main coronary artery  disease, unstable
\nangina, essential  hypertension”.   The   name of  the
\nreferring   Physician  was   Dr. R.C. Bhatia.    Referring
\nCardiologist was Dr. Atul Luthra.  The particulars of the
\noperation  done on the petitioner mentioned in it  were
\n“Coronary  artery  bypass  grafting x6.  Left internal
\nmammary artery anastomosed to left anterior  descending
\nartery.  Individual reversed saphenous venous grafts to
\nlast  obtuse marginal artery, right posterior descending
\nartery, first and 2nd diagonal arteries and distal left
\nanterior descending artery.”\n<\/p>\n
      25.  Annexure E is the bill which showed the Package
\nDeal  for  CABG was  Rs.1,19,000\/-,  Echo  Cardiography
\nRs.1,260\/-  and Maxima Oxygenerate was Rs.6500\/- besides
\nM.R.F. Rs.160\/-.   The  gross total of  the  bill  was
\nRs.1,28,020\/-.\n<\/p>\n
      26.  None  of these three annexures indicate that  the
\npetitioner  on14.10.1996  was taken  in  emergency  to
\nIndraprastha Apollo Hospital, nearest available hospital
\nfor  specialised treatment of the heart disease or  that
\nhe was operated upon on 17.10.1996 as an emergency case.
\nRespondents  1 to 3 have contended that the case of  the
\npetitioner  was not  that of emergency but  a planned
\nadmission  in  Indraprastha  Apollo   Hospital to  have
\ncoronary bypass surgery there. Attention has been drawn
\nto  Annexure  A of  the writ  petition which are  the
\ntreatment  provided  to the   petitioner  at G.B. Pant
\nHospital  on  17.9.1996.  According to this  report  the
\npetitioner  was suffering from ANGIO AOE  III Strongly
\nPositive   TMTCAG;   TVD  in LAD.   The   provisional
\ndiagnosis  was `CAD  ? I. Main.’ The condition of  the
\npatient at the time of discharge was stable.  The report
\nfurther provided in the column “Holter”:  “Cath & Angio
\nAs   on  Obverse”   and    “Plan”:    “Early Surgical
\nRevescularisation  REFFD:  CTVS for early date please.”
\nInstructions  for  follow up were “To attend  cardiology
\nclinic room no.7 on Monday\/Friday.  To collect final CAG
\nReport from Ex-II Lab and report after 3 days.”\n<\/p>\n
    27.    It is submitted on behalf of the respondents that
\nit  is clear from these reports that the petitioner  was
\nadvised early surgery and was instructed to contact CTVS
\nOPD  for  taking  an  early date  for  surgery and  for
\ncollecting  his CAG Report from the concerned Lab within
\nthree  days.  The petitioner did not report back to G.B.
\nPant  Hospital and did not collect the report or take  a
\ndate  for early surgery.  Instead he decided to have the
\nsurgery at Indraprastha Apollo Hospital on the advice of
\na  consultant working in a M.C.D. Hospital (as alleged by
\nthe petitioner) or in Sir Ganga Ram Hospital (as alleged
\nby  the respondent).He as such planned to  have  his
\nsurgery at  Apollo  Hospital and it was not a case  of
\nemergency.\n<\/p>\n
      28.  On  the other hand, counsel for the  petitioner
\nsubmitted  that the  petitioner   sent his  friend  to
\nG.B. Pant  Hospital for collection of the CAG Report  and
\nhe  was advised by a doctor there that the  petitioner
\nshould have  immediate surgery and further that it  was
\nnot  safe to have surgery at G.B. Pant Hospital where the
\nrate  of  success  of such operation was low. In  this
\nconnection, he also referred to a newspaper report about
\nuse  of contaminated surgical aids in G.B. Pant Hospital
\nfor septicaemia deaths in 1994-96.\n<\/p>\n
      29.  The  facts  as emerged from the pleadings of  the
\nparties and  the  documents placed  on record clearly
\nindicate that the petitioner went to Indraprastha Apollo
\nHospital for surgery not as a case of emergency but as a
\nmatter of choice.  This is clear from a  representation
\nwhich  the  petitioner made to the Deputy  Director  of
\nEducation,  North Zone on 30.7.1996 and is Annexure  R-V
\nof  the counter affidavit filed on behalf of respondents
\n1  to 3.  The relevant portion of this representation is
\nreproduced below:\n<\/p>\n
  ”  Angiography (CABG) was done on
\n17.9.1996  and the condition at the  time
\nof  discharge  was stable  from G.B. Pant
\nHospital  it got deteriorated son after a
\nfortnight  I sent my neighbour to collect
\nthe  report  and CAG film the remarks  of
\nDr. G.S. Gambhir were, “Where is   the
\npatient?   He should be in the hospital.
\nHe  is just like an atom bomb when is  he
\ngoing  to  burst no one knows because  of
\nsevere blockage.  He needs an emergency
\noperation.    Having  come  to know I
\nimmediately   contacted    the  medical
\nexperts’  advice.  One and all advised me
\nto  go to  a Hospital where emergency
\noperation  could be performed and  warned
\nme  against  the conditions  of G.B. pant
\nHospital  which showed no chances of life
\nafter  operation “Jaan Hai to Jahan Hai,”
\nwere  the remarks of a nurse who works in
\nG.B. Pant.\n<\/p>\n
 30. I   sought    consultation   from
\nDr. M.P. Gupta  on 5.10.96 who referred and
\nadvised  me  early   surgery(Evidence
\nenclosed).  Then I visited Swami Dayanand
\nHospital    on  9.10.96    and   sought
\nDr. R.C. Bhatia’s advice.(I have been under
\nhis   treatment  since    1985   as a
\nhypertension case).  He is a Sr. Splt.  in
\nCardiology.   He  too  advised me  early
\nsurgery (Evidence enclosed).  It was  as
\nif all roads went to Indraprastha Apollo.
\nI  took appointment on 12.10.96 Saturday
\nand   was  advised  to immediately   get
\nadmitted  to  the Hospital for emergency
\noperation.   I could manage  to  collect
\nfunds  and  took admission on  14.,10.96.
\nThe   doctor  said   “Others  can   wait,
\nM.L. Kamra  can’t.  He should be operated
\non  17.10.96  in  the  morning.”  I  felt
\nmy self safe at the hands of Dr. G.K. Mani.
\nIt  is the expert Dr’s advice that  has
\nsaved my life and I am alive to claim the
\nexpenses  and  I  am sure had I been  at
\nG.B. Pant Hospital you might have found my
\nwife  and  daughter  at  your door  for
\njustice (for pensionary benefits).”\n<\/p>\n
     31.   Counsel for the petitioner has vehemently argued
\nthat the petitioner has a right of self-preservation and
\nconsidering  the advice of the doctors it was absolutely
\nnecessary  for the petitioner to have coronary  bypass
\nsurgery at the earliest for saving his life.  According
\nto  him the petitioner at first approached AIIMS for the
\nsurgery but was not given an early date.  Therefore, he
\nhad no option but to have this operation at Indraprastha
\nApollo Hospital.  Excepting bare words of the petitioner
\nthat  he  was denied an early date for surgery at  AIIMS
\nnothing has been produced on record to corroborate this
\nallegation.  The petitioner could not have gone to AIIMS
\nfor  this operation of his own without being referred to
\nby  G.B. Pant  Hospital or  any other  hospital of  the
\nGovernment of N.C.T.  of Delhi where facilities for such
\noperation  were available.  Though the petitioner  had
\ntried  to  explain as to why he had decided not to  have
\nsurgery at  G.B. Pant Hospital but he has not given  any
\nreason why  he did not get himself referred  to  other
\nthree  private hospitals namely (1) Batra Hospital  and
\nMedical Research  Centre;  (2) Escort Health  Institute
\nand  Research Centre;  and (3) National Heart  Institute
\nand  Research  Centre which are recognised by the  Govt.
\nof  N.C.T.  of Delhi for treatment of heart diseases and
\ncoronary  bypass surgery.  G.B. pant Hospital is a  super
\nspeciality  hospital and has earned a name for itself in
\ntreatment of serious diseases like heart diseases in and
\naround this part of the country.  Still the  petitioner
\nhad  a wider choice to have his operation in other  good
\ngovernment  or private hospitals like AIIMS  or  three
\nprivate hospitals  referred  to above after  getting  a
\nreference  made.   It is not the case of the  petitioner
\nthat he had no opportunity to get the reference made nor
\nis it his case that there was long queue waiting for the
\nemergency  operation in any of these hospitals. He  did
\nsay  that an early date for surgery was not available in
\nAIIMS  but  nothing  has  been produced  on  record  to
\nsubstantiate  this allegation. The representation  made
\nby  the petitioner to the Deputy Director of  Education
\nwhich has been produced by respondents 1 to 3 to counter
\nthe  allegation of the petitioner does falsify the claim
\nof  the petitioner that he went to Indraprastha  Apollo
\nHospital  as  an  emergency case and had  the  operation
\ntherein  that  condition. The  contention of  the
\npetitioner  that  his was an emergency case,  therefore,
\ncould  have  treatment at   the  nearest   approachable
\nhospital,   government or   private, recognised   or
\nun-recognised, for  saving  his life  is  not tenable.
\nNeedless  to state that the counsel for respondents 1 to
\n3  has not disputed that in case of emergency where  the
\nlife of the patient may be in danger of being wasted the
\nState  Government employees can have the treatment  even
\nin  an unrecognised private hospital if it is  necessary
\nfor  saving  their life or health and that they will  be
\nentitled  to the reimbursement of the medical bill  paid
\nby  them on such treatment on a mere certificate of  the
\nHead of the Department.\n<\/p>\n
      32.  Reference to the judgments in in Surjit Singh Vs.
\nState  of  Punjab  & Others (supra),  Sadhu  R. Pall  Vs.
\nState  of  Punjab & Others (supra) and Waryam Singh  Vs.
\nState of  Punjab  &Others(supra) is   absolutely
\nmisplaced.   All of them pertain to the treatment  which
\nthe employees of the Government of Punjab had undertaken
\nin  the hospitals  outside  the   State  of  Punjab  in
\nemergency  under  the  Service Rules and  the  office
\ncirculars  of  the Government of Punjab which  permitted
\nthem  to  have their  treatment  and  surgery at  some
\nrecognised hospitals outside the State of Punjab.  A few
\nsuch  hospitals government and private were situated  in
\nDelhi  also.  These rules were framed by the  Government
\nof Punjab for serious and specialised diseases for which
\ntreatment  was not available in the hospitals within the
\nState  of Punjab.  The earlier rules provided for a long
\ndrawn  procedure  for  getting permission  before  the
\ntreatment  could be had in the hospitals outside Punjab.
\nThe  employees who got treatment in emergency at  some
\nhospitals which were not recognised or without obtaining
\nprior  clearance  from the concerned board  were  denied
\nreimbursement  of medical claim.  They approached Punjab
\n&  Haryana High Court. It was in the peculiar facts  of
\nthe  cases  and the  fact that such  facility was  not
\navailable  in  the hospital within the State  of  Punjab
\nthat  it  was  laid  down   that  the  State  Government
\nemployees   of Punjab  Government had   right   of
\nself-preservation and could not have followed cumbersome
\nprocedure  and waited in a queue for clearance of  their
\nrequest for treatment in the hospital outside the State
\nor  outside  the country.  Their  medical  reimbursement
\nclaims were  allowed. Even in some  cases  the  State
\nGovernment  was directed to reimburse the claim at  the
\nsame scale on which it was reimbursing the claim had the
\ntreatment  been undertaken in a recognised  government\/
\nprivate hospital.  However, after the policy was amended
\nthe  procedure for taking approval for treatment outside
\nthe  State of Punjab was made easier, the Supreme  Court
\nin  State  of Punjab Vs. Ram Lubhaya (supra)  upheld  the
\namended policy but allowed reimbursement of the claim at
\nthe  AIIMS  rate  or in Escort Hospital on  account  of
\npeculiarity of facts.  In the case of Narendra Pal Singh
\nVs.   Union  of India (supra) the  petitioner, a  CGHS
\nbeneficiary  was posted at Hoshangabad and he had to  be
\nadmitted for severe chest pain in a hospital at Vadodara
\nin emergency.  He was found suffering from triple vessel
\ndisease and  had coronary bypass surgery in  emergency.
\nIt  being a treatment\/surgery in emergency, which  could
\nnot  wait for normal procedure to be followed the  Court
\nallowed the reimbursement of medical claim.   Similarly
\nin  M\/s Janani Vs.  Union of India (supra), case  of  a
\nretired  CGHS beneficiary  was   referred  by  R.M.L.
\nHospital  (Central Government Hospital) to Escort  Heart
\nInstitute  and Research Centre for coronary angiography.
\nHe was accorded sanction for heart surgery.  Part of the
\nmedical bill was reimbursed to him.  He filed civil writ
\npetition  for  direction  to the government to pay  the
\nbalance.   It  was held “If the Government hospital  did
\nnot  have the facility for giving treatment like the one
\nwhich  was required to be given to the petitioner,  then
\nit  was an obligation on the part of the respondent  to
\nhave reimbursed the amount paid to the said hospital.”\n<\/p>\n
     33.   No  advantage of these judgments could be claimed
\nby the petitioner in this case. In order to succeed and
\nbecome entitled to the reimbursement of the medical bill
\nof  Indraprastha  Apollo  Hospital  the petitioner  was
\nrequired  to prove that his treatment brook no delay and
\nhe  went to that hospital in emergency. He has not been
\nable  to  prove it.   Contrarily it  appears  that  the
\npetitioner planned to have the treatment at Indraprastha
\nApolloHospital  apprehending that it was not safe  to
\nhave  it  in a government hospital  without  considering
\nthat  three other good private recognised hospitals  for
\nheart diseases were available. For all these reasons it
\nmust  be  held that  the   petitioner did  not  go  to
\nIndrapratha  Apollo  Hospital in emergency and had  his
\ntreatment there in that condition.\n<\/p>\n
      34.  Now  I  advert  to third question.   The Supreme
\nCourt  in  State  of Punjab & Others  Vs.   Ram Lubhaya
\n(supra) while dealing with  the  new policy of  the
\nGovernment  of Punjab which disallowed reimbursement  of
\nthe full medical expenses incurred by an employee of the
\nPunjab Government for such treatment in any hospital in
\nIndia not being a government hospital in Punjab, in para
\n25 observed:\n<\/p>\n
  ”  So  far  as questioning   the
\nvalidity   of  governmental   policy   is
\nconcerned  in our view it is not normally
\nwithin the domain of any court, to  weigh
\nthe  pros  and cons of the policy  or  to
\nscrutinize  and test the degree  of  its
\nbeneficial  or equitable disposition  for
\nthe  purpose  of  varying,  modifying  or
\nannulling it, based on howsoever sound and
\ngood   reasoning,  except   where  it  is
\narbitrary    or   violative of    any
\nconstitutional, statutory  or any  other
\nprovision  of law.  When Government forms
\nits  policy,  it is based on a number  of
\ncircumstances  on  facts,  law including
\nconstraints  based on its resources.   It
\nis  also  based on expert  opinion.   It
\nwould  be dangerous if court is asked  to
\ntest the utility, beneficial effect of the
\npolicy or  its appraisal based on  facts
\nset  out on affidavits. The court  would
\ndissuade  itself from entering into  this
\nrealm which belongs to the executive.”\n<\/p>\n
      35.  In  para 29  of the judgment the  Supreme  Court
\nfurther laid down:\n<\/p>\n
  ”  No  State of any  country  can
\nhave  unlimited resources to spend on any
\nof  its projects.  That is why it  only
\napproves its projects to the extent it is
\nfeasible.    The  same holds good  for
\nproviding  medical  facilities to   its
\ncitizen   including its   employees.\n<\/p>\n
Provision   offacilities    cannot   be
\nunlimited.   It has to be to the  extent
\nfinances  permit.  If no scale or rate is
\nfixed  then  in case private  clinics  or
\nhospital   increase    their rate   to
\nexorbitant  scales,  the Statewould  be
\nbound  to  reimburse the same. Hence  we
\ncome  to the conclusion that principle of
\nfixation of rate and scale under this new
\npolicy is justified and cannot be held to
\nbe  violative of Article 21 or Article 47
\nof the Constitution of India.”\n<\/p>\n
      36.  In para 35 of the said judgment it was observed:\n<\/p>\n
  ”   Learned  counsel for   the
\nappellant   submits  that  in  the   writ
\npetition  filed,  the respondent did  not
\nspecifically  challenge the new policy of
\n1995.If that was done the State  would
\nhave  placed all such material in  detail
\nto  show the financial strain. We having
\nconsidered  the submission of both  the
\nparties,  on  the   aforesaid  facts  and
\ncircumstances, hold that the appellant’s
\ndecision   to  exclude the   designated
\nhospital  cannot be said be such as to be
\nviolative   of Article    21 of   the
\nConstitution.  No right could be absolute
\nin  a  welfare State.  A man is a  social
\nanimal.  He  cannot   live  without  the
\ncooperation of a large number of persons.<\/p>\n
Every article  one  uses is   the
\ncontribution   of  many.    Hence   every
\nFundamental  Right under Part III of  the
\nConstitution  is absolute and it is to be
\nwithin     permissible       reasonable
\nrestriction. This   principle  equally
\napplies when there is any constraint  on
\nthe health budget on account of financial
\nstringencies. But  we  do  hope   that
\nGovernment  will  give due  consideration
\nand  priority  to  the health  budget  in
\nfuture and render what is best possible.”\n<\/p>\n
      37.  Supreme Court in the above judgment, thus, upheld
\nthe  right of Punjab State Government to lay down policy
\nand the procedure for those employees who wanted to have
\ntreatment  of  certain serious diseases  in  recognised
\nhospitals outside the State.\n<\/p>\n
      38.  Government  of N.C.T.  of Delhi has recognised  a
\nnumber of hospitals in Delhi for specialised  treatment
\nof  heart diseases which include three private hospitals
\nwhich are in no way inferior in reputation, services and
\nfacilities  to Indraprastha Apollo Hospital. In  fact
\nthose  hospitals  are  super  speciality  hospitals  for
\ndiseases  relating  to heart. The  rules  also  permit
\nreference  of  the government servants to other Central
\nGovernment   hospitals like AIIMS for   treatment.\n<\/p>\n
 Therefore,  unlike  the conditions which  prevailed  in
\nState of Punjab which compelled the Government of Punjab
\nto  recognise hospitals outside the State for  treatment
\nof its employees, the government servant in Delhi have a
\nlarger choice of hospitals for treatment.   Where  the
\nlife   is  in  danger  of   being  wasted  or  there  is
\npossibility of irreparable injury to the health i.e.  in
\ncase  of  treatment in emergency, the employees of  the
\nGovernment  of N.C.T. of Delhi, may under  the  rules
\nclaim  reimbursement of the amount spent by them on  the
\ntreatment  taken  in  any of the  hospitals  private  or
\ngovernment.   If he had no time to approach his medical
\nattendant\/government  hospital for making reference  he
\nneed  not  worry.   A  certificate by the  Head of  the
\nDepartment  of the government servant that treatment was
\ntaken  in  emergency is enough for reimbursement of  the
\nmedical claim.  For these reasons the argument of  the
\ncounsel for  the petitioner that the rejection of  the
\nmedical claim by the respondents tantamount to denial of
\nfundamental  right to life and health to the  petitioner
\nwhich are enshrined in Article 21 of the Constitution of
\nIndia is, therefore, not tenable.  The petitioner cannot
\nclaim  parity and equity with the employees of the State
\nGovernment of Punjab.  Every government provides medical
\nfacilities  to its employees or for that matter to  its
\ncitizens  keeping  the financial  resources  and  other
\nconstraints  in view.  It cannot be held that if certain
\nrules of Punjab Government allowed its employees to have
\ntreatment and reimbursement of their claim for treatment
\nat  a  private hospital outside the State of Punjab  the
\npetitioner should also be allowed reimbursement of claim
\nin  similar manner from a private hospital of his choice
\nand denial of such reimbursement would be discriminatory
\nand  violative of  Article 14 of  the Constitution  of
\nIndia. There is no merit in this submission.\n<\/p>\n
     39.   Now  I  turn to the last limb of the argument  of
\nthe  counsel  for the petitioner.  It is submitted  that
\nthe  petitioner is a poor employee and he had incurred a
\nhuge  sum  on  his  treatment  at  Apollo  Hospital  and
\nreimbursement, at least, should be granted at the  same
\nscale  at which he was entitled for it to be granted had
\nhe  taken  the treatment at a government  hospital  like
\nAIIMS  or  even the G.B. Pant Hospital. Considering  the
\nhuge  amount  spent by the petitioner the prayer of  the
\npetitioner   seems  innocuous  at   the first glance.
\nHowever, if such reimbursement was allowed it would open
\nPandora’s  box. The rules have been framed by the State
\nGovernment  for providing  medical  facilities to  its
\nservants  keeping in view the financial resources,  need
\nand  other  constraints of the State Government.   These
\nrules  are reasonable and cannot be held to have  denied
\nthe  government servant  of fair and  adequate medical
\nfacilities.   If the petitioner in contravention of  the
\nCS  (MA)  Rules or  the  government  circulars take  a
\ntreatment  at a place of his choice and he is reimbursed
\nthe  medical claim at the rates which are applicable for
\ntreatment  in government hospitals it would open a flood
\ngate  of medical reimbursement claims from its employees
\nwhich  may not be good for its financial resources.  The
\ngovernment  has established the hospitals, spends  huge
\nsum  on their maintenance, it has  recognised certain
\nprivate hospitals also in consultation with the experts
\nand keeping in view of its own financial resources.  The
\nviolation of such rules, therefore, cannot be allowed to
\nbe made even in exception.\n<\/p>\n
       40. For  the reasons stated above I do not find  any
\nmerit in the writ petition.  It is dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court M.L. Kamra vs Lt. Governor And Ors. on 1 September, 2002 Author: M A Khan Bench: M A Khan 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-142021","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nM.L. Kamra vs Lt. 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