Sudhir Kumar Katriar and Kishore K. Mandal, JJ.
1. The petitioner of CWJC No. 7500 of 1999 has preferred this appeal in terms of Clause 10 of the Letters Patent of the High Court of Judicature at Patna, and is aggrieved by the order dated 14.9.99, whereby the petitioner's claim for reimbursement for his liver transplantation abroad has been rejected. We shall go by the description of the parties occurring in the writ petition. The same was filed by Dinesh Kumar Singh (hereinafter referred to as 'the original petitioner') who died during the pendency of the present appeal, on 26.1.2005, and has been substituted by his widow, who is the present appellant.
2. A brief statement of facts essential for the disposal of the appeal may be indicated. The original petitioner was a member of the Bihar Legislative Council from 1962 to 1980. He was thereafter a member of the Bihar Legislative Assembly from 1982 to 1990, and was Minister of State and Cabinet Minister during this period. While still in office, he suffered from jaundice and was undergoing treatment in Patna, under the care of the Head of the Department of Medicine, Patna Medical College & Hospital. His condition deteriorated, and was referred to All India Institute of Medical Science, New Delhi (AIIMS for short) for further treatment. AIIMS diagnosed it to be a case of cirrhosis of liver, and was advised to undergo liver transplantation at the earliest which facility was then not available in India. This position is borne out by the certificate dated 7.10.93 (Annexure 1), issued by AIIMS. Accordingly, the petitioner had immediately thereafter flown to the United Kingdom. It appears from the Facsimile Transmission dt. 20.10.1993 (Annexure 2), from the Queen Elizabeth Hospital, Birmingham that the expected cost of liver transplantation was 40,000/- pounds. It further appears from the certificate dated 17.12.93, marked Annexure-3, issued by the said hospital, that he had undergone liver transplantation on the said date. The petitioner returned to India after successful surgery and submitted his medical bills to respondent No. 6 (Secretary, Legislative Assembly, Bihar, Patna). The same was forwarded to the Health Department, Government of Bihar, for the needful as per the rules, along with letter dated 13.2.95 (Annexure 4). This was followed by various reminders from respondent No. 6 to the State Government but final order was not passed leading to the present CWJC No. 7500 of 1999, which was disposed of on 14.9.99.
(ii) The writ petition had raised the claims in two parts. The first was for expenses incurred over the treatment in India, and the second one was for treatment abroad. The learned writ court rejected the claim for treatment abroad. In so far as the balance of the claim, i.e. for treatment within India is concerned, the respondent authorities were directed to take a final decision without further delay. The appeal, therefore, is confined to the petitioner's claim for reimbursement for the treatment abroad.
(iii) In so far as the petitioner's claim for treatment within India is concerned, the same was rejected by order dated 26.10.99 (Annexure-A to the counter affidavit in the present appeal), giving rise to CWJC No. 12643 of 1999, which was allowed by a learned single Judge of this Court by judgment dated 28.7.2004 (Annexure-B to the counter affidavit in the appeal), directing the State Government to reimburse the original petitioner for medical expenses incurred in India. We are informed at the Bar that the judgment has been complied with and the claim for reimbursement for treatment within India has been sanctioned and paid to the satisfaction of the original petitioner. Communication dated 6.7.2005 (Annexure-C) from respondent No. 6 to the Accountant General, shows payment to the original petitioner.
3. Learned Counsel for the petitioner relies on the provisions of Rule 9(2) of the Bihar Legislature (Members' salary, allowances and pension) (Amendment) Ordinance 1997 (hereinafter referred to as the 'Amending Ordinance') that medical expenses for liver transplantation for an ex-legislator is admissible. He submits that even if the rules do not permit treatment abroad, the same would be admissible because its treatment was not available in the country. He next submits that the Bihar Legislature (Members' salaries, allowances and pension) Act 1960 (hereinafter referred to as 'the Act'), or the 1990 Rules thereunder (hereinafter referred to as the '1990 Rules'), does not prohibit treatment of legislators or ex-legislators abroad.
4. Learned Counsel submits that Rule 2(3) of the 1990 Rules provides that supply of the required medicines which are not available in the hospital where treatment is going on, can on certification of the hospital incharge, be purchased from outside and shall be reimbursed. He submits that the same in spirit supports the petitioner's case in a situation where the admitted position is that the facility of liver transplantation at the relevant point of time was not available in India. He relies on the following reported judgments:
(i) : (1998)8SCC552 (Devinder Singh Shergil v. State of Punjab and Ors.)
(ii) : [1996]1SCR1095 (Surjeet Singh v. State of Pubjab and Ors.)
(iii) : [1998]1SCR1120 (State of Punjab v. Ram Lubhaya Bagga)
(iv) : AIR1997SC1225 (State of Punjab v. Mahinder Singh Chawla)
5. Learned Standing Counsel appearing for respondent Nos. 1 to 4 (State of Bihar and its functionaries) has opposed the writ petition. He submits that that the 1990 Rules would be applicable in the present case which was in force when the surgery had taken place. The 1997 Rules were enforced later on. He next submits that prior permission of the State Government was not obtained to undertake the treatment abroad. He relies on the judgment in Surjeet Singh (supra). He next submits that the Rules do not provide treatment to the ex-legislator abroad. In his submission, the position emerges from the definition of Government Hospital, medical attendants, as occurring in the definition portion of Rule-2 of 1990 Rules. He lastly submits that a similar claim raised in CWJC No. 9251 of 1998, was allowed by a learned single Judge of this Court by judgment dated 8.4.99, reported in 1999 (2) PLJR 259 (Dr. Mithilesh Kumar v. State of Bihar), which has not been approved by a Division Bench of this Court by judgment dated 31.10.2007 (Annexure -E to the counter affidavit in the present appeal).
6. Learned Counsel for respondent No. 5 (Secretary, Legislative Council, Bihar, Patna) submits that he has been needlessly made a party to the proceeding and has never been concerned with the claim.
7. Learned Counsel for respondent No. 6 has supported the stand taken by learned Counsel for the petitioner.
We have perused the materials on record and considered the submissions of learned Counsel for the parties. We shall first of all deal with the contention advanced by learned Standing Counsel that the provisions of the 1990 Rules are not applicable in the present case, and not the 1997 Rules which has amended 1990 Rules. Rule 9(2) of the 1997 Rules is reproduced hereinbelow for the facility of quick reference:
9- fcgkj vf/kfu;e 15] 1960 dh /kkjk 6 ds ckn ,d ubZ mi&/kkjk 2 dk varLFkku 1& mDr vf/kfu;e dh /kkjk 6 ds ckn ,d ubZ mi&/kkjk 2 fuEufyf[kr :i esa vr%LFkkfir dh tk;xh] ;Fkk&
2 fcgkj fo/kku&eaMy; ds fdlh lnL; rFkk iwoZ lnL; dks tks xEHkhj chekjh;ks ;Fkk xqnkZ jksx] dSUlj] ydok ;k cM+h nq?kZVuk dh fLFkfr es fpfdRlk ij gksus okys O;; dk ogu jkT; ljdkj djsxh] ijUrq ;g fd chekjh dh vuq'kalk ljdkjh vLirky ds fo'ks'kK fpfdRld }kjk fd;k x;k gks vkSj ;g Hkh fd lnL; ds vuqjks/k ij fo'ks'kK fpfdRld }kjk fu/kkZfjr fpfdRlk esa gksus okys vuqekfur O;; 75 izfr'kr jkf'k ljdkj }kjk vfxze ds :i esa fn;k tk;xk] 'ks'k&25 izfr'kr jkf'k dk Hkqxrku fpfdRlk ij gq, O;; dk C;ksjk lefiZr djus ij fd;k tk;sxk] lkFk gh lnL; dks ,d lg;ksxh vVsUMsUV dk Hkh lkekU; [kpZ ljdkj ogu djsxh A
It is evident that a new provision has been inserted in the 1990 Rules, whereby treatment of legislator and ex-legislator for treatment of serious ailments like kidney/ heart cancer, paralysis or a major accident is reimbursable, and further provides for payment of advance in the manner indicated therein. This enlarges the scope of Rule-4 of 1990 Rules, which also provides reimbursement for outdoor treatment of serious diseases like cancer, etc. The position has really been clarified by the 1997 Rules by stating that such reimbursement shall be admissible for all kinds of serious ailments including kinds of ailments mentioned therein which are, in our view, illustrative in nature. Apart from the clinical position that cirrhosis of the liver is a kind of cancer of the liver, we are convinced that the original petitioner was entitled to reimbursement for treatment under 1990 Rules.
8. The question whether or not reimbursement was admissible for treatment within India alone or abroad also, is another aspect of the matter which we shall hereinafter consider separately. Furthermore, the petitioner's claim for reimbursement for treatment in India was, as stated hereinabove, rejected by order 26.10.99 on the basis of the provisions contained in the aforesaid Rule 9(2). In other words, the State Government rejected the claim for treatment in India. The said order of the State Government of 26.10.99 in substance stated that the petitioner's case was governed by Rule 9(2) of the Rules, but the claim was rejected because the rule does not provide for treatment of liver ailment. In other words, the State Government proceeded on the footing that the provisions of Rule 9(2) are applicable in the present case. The same was challenged in CWJC No. 12643 of 1999, which has been allowed by judgment dated 28.7.2004, on the basis of a plain reading of Rule 9(2) of the Rules. Thirdly, the provisions of Rule 9(2) are in the nature of beneficial provision and should, therefore, govern the present case also. It is further relevant to state that the judgment in CWJC No. 12643 of 1999 was implemented by the State Government, payment for treatment has been made to the satisfaction of the original petitioner and that judgment has attained finality. It is now no longer open to the answering respondents to raise this objection at this stage. The contention is rejected.
9. We must now deal with the question/objection raised by learned Standing Counsel that there are clear indications in the 1990 Rules that the cost of treatment within India is alone reimbursable. The definitions of 'Government Hospital', as well as 'Medical Attendants', occurring in Rule 2(c) and Rule 2(f), do provide that the treatment for purpose of reimbursement has to be undergone in government hospitals which are to be found only in India. The contention on the face of it is attractive. However, the definition portion of 'government hospital' and medical attendants cannot come in the way of the petitioner's claim, inter alia, for the reason that the Act and the Rules contemplate a situation that the treatment of the ailment is available in India. The admitted position in the present case is that the petitioner was advised transplantation of the liver and the facility was not available in India. The certificate of the AIIMS (Annexure 1) is reproduced hereinbelow for the facility of quick reference:
ALL INDIA INSTITUTE OF MEDICAL SCIENCES
October 7, 1993
This is to certify that Mr. Dinesh Kumar Singh is suffering from cirrhosis of the liver, portal hypertension, spontaneous bacterial peritonitis and hepatocellular failure. He is advised to undergo liver transplantation at an earliest. This facility do not exists in India.
Sd/-
(D K Bhargava)
10. The respondent authorities had not filed any counter affidavit in the writ proceeding denying the veracity of the certificate or the facts stated in the writ petition. The answering respondents have filed a counter affidavit in the present appeal and have not doubted the veracity of the certificate. In this background, it appears to be a harsh measure to deny to the petitioner the claim for treatment abroad in a situation where treatment was not available in India, surgery was unavoidable, and had to be done on emergency basis. The objection is, therefore, overruled.
11. Learned Standing Counsel has placed reliance on the Division Bench judgment of this Court dated 31.10.2007 (Annexure -E), in LPA No. 480 of 1989 (State of Bihar v. Dr. Mithilesh Kumar). That was a case where the petitioner was a permanent employee in the Department of Health, Govt. of Bihar, and his son aged three years was suffering from a serious disease like Osteotporosis with Hydrocaphalus, the treatment of which was not available in India. The claim was rejected by the State Government leading to the aforesaid CWJC No. 9251 of 1998 (Dr. Mithilesh Kumar v. State of Bihar) which was allowed by a learned single Judge by judgment dated 8.4.99, reported in 1999 (2) PLJR 259, directing the State Government to accord permission for treatment abroad and for reimbursement. The State of Bihar preferred appeal which has been allowed by the Division Bench. It appears on a perusal of the two judgments that the Rules which govern the said writ petitioner do not provide for reimbursement of the dependents of the employee, and the appeal was pre-eminently allowed on this ground. The position is fundamentally different in the present case where ex-legislators are allowed reimbursement under the Act and the Rules governing their cases. His claim for reimbursement for part treatment of the same ailment in India has already been sanctioned and paid. The question is only for reimbursement of the cost of treatment abroad. The judgment of this Court in LPA No. 480 of 1999 stood on a different footing and is of no help in deciding the issue raised in the present case.
12. Learned Standing Counsel has also submitted that prior permission of the State Government was not obtained. There is no indication at all in the Act or the Rules that prior permission for the treatment is a Sine Qua Non for claim for treatment abroad and for reimbursement. Furthermore, it is evident that the petitioner was faced with a situation of emergency; AIIMS certified that the original petitioner was suffering from cirrhosis of the liver and was advised on 7.10.1993, to undergo liver transplantation at the earliest. He was thereafter admitted in the hospital in England on 20.10.93, and had undergone surgery (liver transplantation) on 17.12.93. The chronology of events eloquently speaks of the emergent situation and, therefore, there was no time for the original petitioner to seek prior permission, even if it were essential. The contention is rejected.
13. Learned Counsel for the original petitioner has relied on the judgment in Devinder Singh Shergil (supra). That was a case where the appellant was in the employment of the State of Punjab who was suffering from malignant growth in kidney. He had reported for treatment at Post Graduate Institute of Medical Sciences, Chandigarh, but on being informed about non-availability of accommodation, had proceeded to United Kingdom for immediate treatment. He raised a claim of Rs. 3,73,174/- out of which the State Government sanctioned and paid him Rs. 20,000/- as per the Rules prevalent in PGIMS, Chandigarh. The Supreme Court allowed reimbursement to the extent of expenses admissible in AIIMS. In our view, the judgment is not applicable to the facts and circumstances of the present case primarily for the reason that it was not the case of the appellant therein that the treatment of malignant growth of kidney was not available in India. There is yet another difficulty in applying the ratio discernible from the said judgment. When the facility of liver transplantation was not available in India, then on what basis assessment of costs of treatment in India would be made. It is, therefore, inherent in the situation that the original petitioner had no option but to undertake the treatment abroad or should have allowed himself to death.
14. The judgment of the Supreme Court in Surjeet Singh (supra) has been relied on by both the sides. That was a case where the appellant therein had undergone test of angiography and bye-pass surgery in a private hospital in New Delhi. The State Government allowed reimbursement to the extent it would have been incurred in the AIIMS. While allowing the claim, the Supreme Court observed that the State Government cannot insist for treatment in a government hospital and, therefore, directed for reimbursement. We are of the view that the judgment stood on a different footing and is, therefore, not relevant in the present context.
15. Learned Counsel for the original petitioner has relied on the State of Punjab v. Ram Lubhaya Bagga (supra). That was a case where the employee had undergone treatment in a private hospital. The claim for reimbursement was allowed as per the policy decision of the government and rates prevalent in the government hospital and approved by the Board. The policy decision was upheld by the Supreme Court on the ground that it was basically a policy decision with which Courts are generally reluctant to interfere, and also on the ground that the State Government is entitled to limit it in view of its own financial constraints. In the present case, no provision under the Act or the Rules have been brought to our notice which prescribes the maximum limit for reimbursement for treatment of legislators or ex-legislators. Therefore, the judgment in the State of Punjab v. Ram Lubhaya Bagga (supra) stood on a fundamentally different footing and is not applicable to the facts in support of his contention that the Membership Card was and circumstances of the present case.
16. Learned Counsel for the original petitioner has also relied on the State of Punjab v. M.S. Chawla (supra). We see no applicability of the judgment in the present case.
It is evident that the present appeal is confined to the petitioner's claim for reimbursement for the surgery which took place in the United Kingdom on 17.12.93. His claim for subsequent visits for review and follow-up action is the subject matter of a different writ petition bearing CWJC No. 3935 of 1999, with which we are not concerned at all.
17. In the result, we respectfully disagree with that part of the order dated 14.9.99, passed in CWJC No. 7500 of 1999, whereby the petitioner's claim for reimbursement for liver transplantation in U.K. has been rejected. The appeal is allowed in the manner indicated hereinabove. The original petitioner shall also be entitled to travel expenses along with a companion to and fro, and his/her stay in U.K. to the extent needed for the surgery. Let the payments be made on verification of the claims within a period of four months from today failing which the original petitioner shall be entitled to interest @ 6% from the date the expenses were incurred till the date of payment. The sanction and the cheque shall now be issued in favour of Ms. Bibha Singh, widow of the original petitioner, and the present appellant.
It goes without saying that the State Government will be entitled to recover the amount of interest from the concerned authorities.
.