SHIV KUMAR SHARMA, J. - (1.) IS the claim of the petitioner for medical reimbursement valid and justified in the facts and circumstances of this case, is the core question which emerges for consideration in the instant writ petition.
(2.) THE petitioner's husband late Shri Jagpal Singh, was the member of the Rajasthan Higher Judicial Service (in short Higher Judicial Service ). When he was holding the post of President District Consumer Redressal Forum, Dausa in the year 2000 he suspected to be a severe heart patient. He was examined by the Expert Cardiology of SMS Hospital, who advised him to undergo heart surgery. His case was referred to a Medical Board for examining the feasibility and place of heart surgery, which submitted its report on May 26, 2000. It was inter alia stated in the report that Jagpal Singh is suffering from Coronary Artery Bypass Grafting (for short CABG) and his three vessels require grafting, therefore he needed CABG operation. It was further recommended that although this facility was available in the State of Rajasthan, yet he was referred to All India Institute of Medical Science, New Delhi or Escorts Hospital, New Delhi as he wanted to be operated in New Delhi. THE approximate cost of operation in the SMS Hospital was shown to be Rs. 50,000/- and expenses of an attendant as per rule. A communication dated May 26, 2000 was received by Jagpal Singh from Principal, SMS Medical College and Controller of the Attached Hospitals, Jaipur wherein it was stated that he could go to Escorts Heart Institute New Delhi (for short Escorts ). Jagpal Singh thereafter was admitted in the Escorts for Coronary Angiography on May 20, 2000 and was discharged on May 21, 2000. Since immediate surgery was necessary required Jagpal Singh was again admitted on May 29, 2000 to the Escorts where CABG operation was performed. Jagpal Singh was discharged on June 12, 2000. In the Escorts following amount was paid by Jagpal Singh towards surgery: Rs. 14,000/- vide Receipt No. 2538 dated 20. 5. 2000 Rs. 1,90,000 vide Receipt No. 2955 dated 29. 5. 2000 Rs. 7200 vide Receipt No. 3626 dated 12. 6. 2000. Shri Jagpal Singh during his life time made several representations to the respondents seeking medical reimbursement but no heed was paid. After the demise of Shri Jagpal Singh, the petitioner has filed the instant writ petition with the following prayer: (i) for medical reimbursement of Rs. 2,11,200/- and (ii) to declare Rule 7 of the Rajasthan Civil Services Medical Attendant Rules 1970 (for short 1970 Rules) as unconstitutional. The respondents submitted reply to the writ petition with the averments that the Medical Board after examining Jagpal Singh observed in its report that the treatment required by him was available in the State of Rajasthan but since the patient wanted to be operated in New Delhi, he could be referred to New Delhi AIIMS/escorts. On May 30, 2000 Jagpal Singh wrote to the Principal SMS Medical College Jaipur that since Doctors at Escorts advised for immediate surgery his case could be referred to the Escorts. Therefore Jagpal Singh was entitled to only such amount of expenses which would have been spent had he been treated in SMS Medical College, Jaipur. As per rule 7 of the 1970 Rules reimbursement of expenses as incurred on treatment in Medical Hospitals/institutions outside the State as was permissible only in respect of Hospitals enumerated in Appendix 11. Since Escorts was not included in Appendix 11, the relief sought in the writ petition could not be granted. We have pondered over the rival submissions and scanned the material on record. Before proceeding further it will be appropriate to scan the scheme of 1970 Rules framed under the proviso to Article 309 of the Constitution and came into force with effect from March 1, 1970. Rule 7 of 1970 Rules reads as under : " 7. Treatment of a disease for which treatment is not available in the State:- (1) A Government servant and the members of his family suffering from a disease for which treatment is not available in any Government Hospital in the State shall be entitled to medical attendance and treatment to the extent indicated in sub-rule (2) of this rule in a Hospital/institution outside the State recognised by the Government, provided that it is certified by the Principal of a Medical College/director of Medical & Health Services on the basis of opinion of the Authorised Medical Attendant to the effect that the treatment of a particular disease from which the patient is suffering is not available in any Government hospital in the State and it is considered absolutely essential for the recovery of the patient to have treatment at a hospital outside the State. (2) The following charges/expenses shall be reimbursable:- (a) Cost (including Sales Tax) of Allopathic Drugs, Medicines, Vaccines, Sera or other therapeutic substances reimbursable under these rules. (b) Sums actually paid to the Hospital/institution on account of medical attendance and treatment including charges for surgical operations and ordinary nursing facility. (c) Travelling allowance for journey by rail/road from duty point at the station at which the patient falls ill to the place of treatment outside the State and back to a single fare of the class to which his classification entitles him under Rajasthan Travelling Allowance Rules. Such travelling allowance shall also be admissible for an attendant, if the Authorised Medical Attendant certifies in writing that it is unsafe for the patient to travel unattended and that an attendant is necessary to accompany the patient to the place of treatment and back. (3) The facility of medical attendance and treatment in the type of cases mentioned in sub-rule (1) can be had at any of Hospitals/institutions Mentioned in Appendix 11. (4) For the purpose of reimbursement, the original receipts issued by such Hospital/institutions and vouchers of medicines etc. shall be countersigned by the Authorised Medical Attendant of Government Hospital on whose advice the treatment outside the State was undertaken. APPENDIX 11 The following Hospital/institutions outside the State are recognised for the purpose of Rule 7 (3) of these rules:- (1) All India Institute of Medical Science, New Delhi. (2) Tata Memorial Hospital, Bombay. (3) Christian Medical College Hospital, Vallore. (4) Cancer Institute, Madras. (5) Irwin Hospital, New Delhi. (6) Lady Hardinges Medical College Hospital, New Delhi (for women and children ). (7) J. J. Hospital, Bombay. (8) Jas Lok Hospital, Bombay. (9) Gujrat State Cancer & Research Institute (M. P. Shah Cancer Hospital), Ahmedabad. (10) Post Graduate Institute & Medical Education Research Centre, Chandigarh. (11) Bombay Hospital, Bombay. " A look at Rule 7 goes to show that Government servant and the members of his family suffering from a disease for which treatment is not available in any Government Hospital in the State of Rajasthan shall be entitled to medical attendance and treatment outside the State of Rajasthan in the Hospital/institute recognised by the State Government. If this rule is religiously followed than no Government Servant and the members of his family shall be entitled to medical attendance and treatment outside the State of Rajasthan. Would any Hospital admit that particular disease could not be treated in Rajasthan? The answer shall always be in negative. The word `treatment' used in Rule 7, in our opinion implies `treatment by specialised Hospital'. Coming to the facts of the instant case we find that Jagpal Singh was advised to undergo immediate surgery. Since treatment by specialised Hospital was required, Jagpal Singh in order to advert threat to life asked the Medical Board to recommend his case for surgery in Escorts. The operation was delayed only for some time because Jagpal Singh was diabitique and it was necessary to control diabetes.
(3.) IT is well settled that right to health is an integral to right to life. Their Lordships of the Supreme Court in (1), indicated as under:- (Para 10) "it is otherwise important to bear in mind 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, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self preservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this Great Land conceived of such right and recognised it. Attention can usefully be drawn to vs. 17, 18, 20 and 22 in Chapter 16 of the Garuda Purana (A Dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine: 17. Vinaa Dehena Kasyaapi canpurushaartho na vidyate tasmaaddeham dhanam rakshetpunyakarmaani saadhayet Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit. 18. Rakshayetsarvadaatmaanamaatmaa saravasya bhaajanam Rakshane yatnamaatishthejje vanbhaadraani pashyati One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life. 20. Shariraraksanopaayaah kriyante sarvadaa budhaih Necchanti cha punastyaagamapi kushthaadiroginah The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body. 22. Aatmaiva yadi naatmaanamahitebhyo nivaarayet Konsyo hitakarastasmaadaam\tmaanam taarayishyati If one does not prevent what is unplesent to himself, who else will do it? Therefore one should do what is good to himself. " Not only in `garuda Purana" right to life was also recognised in `yajur VEDA'. First `mantra' of YAJUR VEDA reads as under: " Ishe tvoarjey twaa vaayavastha devo vah savitaa praarpayatu shreshthatamaaya karmana aapyaadwarmaghnyaa indraaya bhaagam prajaapatiranameevaa ayakshmaa maa vahstena eeshata maaghashanso dhruvaa asmin gopathau syaata bahveeryajamaanasya pashoon paahi. " The mantra tells at the outset, about the various types of actions that man must undertake to bring happiness to the world. It says that the vital airs, the winds, the etherial elements (vaayavah) may be harnessed for food (ishe), the food which may give energy and vitality (oorjey ). May the God Savitaa, the producer of precious gifts and the great inspirer of men and other beings, help the people to engage themselves in the best deeds (shreshthatamaaya karmana ). The sense organs, and also all living beings (Aghnyaah) are fit to be protected and properly maintained, for, our own happiness depends upon them. We must keep ourselves free from the wasting disease (anameevah), we must save ourselves from the thieves (stenah) i. e. , robbers and cheats, we must also keep ourselves away from the (aghashansah) people who directly or indirectly, actively or passively support the sinners and their sinful activities. The children, the servants as well as other dependents of a house-holder, also have to be protected against all sorts of dangers (Yajamaanasya pashoon paahi ). This gives us a general idea about the contents of the Yajur Veda. The first and the foremost concern of the living beings is food. Animals eat food for their own survival. They are not concerned about the survival of others. But human beings cannot afford to neglect the survival of others. They must be always conscious about their environment. They must also take care of the ecological balance. These are necessary for their own survival and happiness. Men must also be able to produce food by harnessing the natural resources. They must take special care of their own health. Their happiness depends upon it. Men must also protect themselves from wasting disease. Or else their life may become miserable. " In State of Punjab vs. Mohinder Singh Chawla (2), Hon'ble Supreme Court held that Government has constitutional obligation to provide the health facilities. If the Government servant has suffered an ailment which requires treatment at a specialised 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. ;