State
of Punjab & Ors Vs. Ram Lubhaya Bagga
[1998] INSC 131 (26
February 1998)
S.B.
Majmudar, M. Jagannadha Rao, A.P. Misra Misra, J.
ACT:
HEADNOTE:
Leave
granted.
In
these set of appeals arising out of Special leave petitions, the common
question which has come up for consideration is the entitlement towards medical
expenses of the Punjab government employees and pensioners as per the relevant
rules and the Government policy. In pith and substance, the scale at which
their reimbursement is admissible towards their medical expenses incurred in a
nongovernmental hospital. It is not a new phenomena, such employees have been
and are still raising such issue repeatedly with the changing scenario,
political, social and financial the policy of reimbursement is not static. In
the recent past in spate of petitions dealing with the 1991 policy of the State
Government this Court settled this principle in the case of Surjit Singh vs.
State of Punjab & Ors., (1996 (2) SCC 336 and State of Punjab vs. Mahinder
Singh Chawla (1997 (2) SCC 83. Consequent to the effect of the said and other
decisions and their resultant impact on the State exchequer and other actors
led the State Government to reconsider its old policy of 1991 by making
necessary modifications, deletionsa through order dated 9.9.94 till it was
substituted through a new policy dated 13th February, 1995. All the earlier
rulings were based on the aforesaid old policy including the clarification
dated 8th October, 1991. The same was partially withdrawn
on 9th September, 1994 followed by placing the new policy
on 13th February, 1995. In short respondents grievance, is
the claim which was allowed by this Court earlier when such employees were
admitted for heart ailment in escorts a non- governmental hospital, is now being
declined which was allowed by this Court earlier when such employees were
admitted for heart ailment in Escorts a non-governmental hospital, is now being
declined which is in contradiction to the said rulings of this Court.
In
short in SLP (C) No. 13167 respondent is said have suffered a severe heart
attack on 13th March, Research Center in an emergency. On 27th March, 1995 and was taken to the Escorts Hearts
Institute and Research Center in an emergency. On 27th March he underwent coronary artery
bypass graft surgery. Finally he was discharged on 10th April, 1995. The entire expenses incurred for the treatment, surgery,
post-operative check up etc. came to Rs.2,11,758,70. In May, 1996 he has
submitted the bill to the government for reimbursement.
The appellant's
stand is that as per new policy dated 13th February, 1995 the reimbursement of
the medical expenses incurred in any private hospital is only admissible, if
for such ailment, treatment is not available in any government hospital, and
for this no objection certificate is obtained from the Civil Surgeon or
Director of Health Services as the case may be. Respondent's case was not
referred to the Escorts for any treatment by any of the competent authority.
For any such claim an employee must obtain no objection certificate from the
concerned authority. In cases of emergency if admitted in a private hospital
ex-post facto approval could be obtained from the concerned authority of course
within the permissible parameters. As the claim relates to surgery conducted
after the new policy and the reimbursement amount is claimed on the basis of
the bill of the Escorts, the same is, according to appellant not permissible in
as much as the Committee of Technical Experts has decided as per the new policy
that only rates as prevalent in All India Institute of Medical Sciences, New
Delhi, will be paid.
The
respondents with vehemence challenge this stand and the new policy of the
appellant which has come into force on 13.2.95 as the same being violative of
Article 21 of the Constitution of India. It is argued this is one of the most
sacred fundamental rights given to its citizen.
Since
right to life is protected under this Article hence refusing to pay the amount
spent to save one's life amounts to the curtailment of such right, hence violative
of Article 21. In earlier decisions this Court has said that the right to live
does not mean mere survival or animal existence but includes the right to live
with Human dignity. In other words, man's Life should be meaningful, worth
living. Pith and substance of life is the health, which is the nucleus of all
activities of life including that of an employee or other viz. the physical,
social, spiritual or any conceivable human activities. If this is denied, it is
said everything crumbles.
This
Court has time and again emphasised to the Government and other authorities for
focussing and giving priority and other authorities for focussing and giving
priority to the health of its, citizen, which not only makes one's life
meaningful, improves one's efficiency, but in turn gives optimum out put.
Further to secure protection of one's life is one of the foremost obligation of
the State, it is not merely a right enshrined under Article 21 but an
obligation cast on the State to provide this both under Article 21 and under
Article 47 of the Constitution. The obligation includes improvement of public
health as its primary duty. Learned counsel for the appellant on the other hand
does not deny such a right but urges that the same can be placed within
permissible limits by rules and policies laid down. The right claimed may be
sacrosanct, which has to be given, but the same can be put within reasonable
limits, under a policy which is framed after taking into consideration various
factors. Thus the only question is, whether the new policy is arbitrary,
unreasonable violative of any law or principle to be struck down. Of corse it
has to stand to the test of reasonableness and not to erode or curtail any of
the Constitutional or Statutory right of any employee, If not, the claim cannot
go beyond the policy.
Shri
Rajeev Dhawan, learned senior counsel appearing for the appellants submits with
force that it would be no violation, if medical facility in absolute term as
desired is not provided because of any financial constraints viz. lack of
financial resources or for such other reasons. No right under the Constitution
is absolute in term. It has to be balanced with the need, equity and the
resources available.
In
Vincent Panikurlangara vs. Union of India: (1987) 2 SCC 165;
"Para
16 - In a series of pronouncement during the recent years this court has called
out from the provisions of part IV of the Constitution these several
obligations of the State and Called upon it to effectuate them in order that
the resultant pictured by the Constitution Fathers may become a reality. As
pointed out by us, maintenance and improvement of public health have to rank
high as these are indispensable to the very physical betterment of these
depends the building of the society of which the Constitution makers envisages.
Attending to public health, in our opinion, therefore, is of high priority -
perhaps the one at the top." " The expression 'life' assured in
Article 21 does not connote mere animal existence or continued drudgery through
life. It has a much wider meaning which includes right to livelihood, better
standard of living, hygienic conditions in the work place and leisure
facilities and opportunities to eliminate sickness and physical disability of
the workmen. Health of the workman enables him to enjoy the fruits of his labour,
to keep him physically fit and human right to protect his health. In that case
health insurance, while in service or after retirement was held to be a
fundamental right and even private industries are enjoined to provide health
insurance to the workmen." In Kirloskar Brothers Ltd.
vs. Employees State Insurance corporation, 1996 (2) SCC 682;
"Para 9 - The Constitution envisages the establishment of
a welfare State at the federal level as well as at the State level. In a
welfare State the primary duty of the Government is to secure the welfare of
the people. Providing adequate medical facilities for the people is an
essential part of the obligations under taken by the Government in the welfare
State.
The
Government discharges this obligation by running hospitals and health centers
which provide medical care to the person seeking to avail of those facilities.
Article
21 imposes an obligation on the State to safeguard the right to life of every
person. Preservation of human life is thus of paramount importance. The
government hospitals run by the State and the medical officers employed therein
are duty bound to extend medical assistance for preserving human life. Failure
on the part of a government hospital to provide timely medical treatment to a
person in need of such treatment results in violation of his right to life
guaranteed under Article 21." In Paschim Banga Khet Mazdoor 1996 (4) SCC
36;
"Para 16- It is no doubt true that financial resources are
needed for providing these facilities. But at the same time it cannot be
ignored that it is the constitutional obligation of the State to provide
adequate medical services to the people. Whatever is necessary for this purpose
has to be done. In the context of the constitutional obligation to provide free
legal aid to a poor accused this Court has held that the State cannot avoid its
constitutional obligation in that regard on account of financial constraints.
The said observations would apply with equal, if not greater, force in the
matter of discharge of constitutional obligation of the State has to be kept in
view." On the basis of last decision reference to above, the question is,
whether such a right is absolute and no financial constraints could be pleaded
or if it could be, to what extent? This we would be adverting little later.
Learned
counsel for the appellants fairly submits that in respect of any such claim of
reimbursement for a period prior to the new policy, the old policy of 1991 as
modified before the new policy would be applicable. so far as the old policy
goes the law is well settled through various decisions of this Court about
which there is not much dispute.
Before
proceeding further we would like to refer to a preliminary objection raised by
learned counsel for the respondent that under this new policy when the State
Government denied such claim of an employee in circumstances similar to the
present case, the said employee filed a writ petition which was allowed by the
High Court in the case of Varian Singh vs. State of Punjab (1996 (4) SLR 177)
against that judgment the State filed SLP (C) No. 12954 of 1996 and it was
dismissed by this Court on 17th December, 1996. Hence it is contended for the
respondent that the State cannot take up the same stand which has become final.
We are
informed and it is not disputed that the said dismissal of the SLP was not by
any reasoned order. Points raised here before us was neither raised nor decided
in that SLP by this Court. As this question is likely to come in future, we
feel it is necessary to decide and settle it.
Hence
this preliminary objection raised by the respondent has no force.
The
validity of the claim of the respondents has been upheld by the High Court
under the impugned order and the which respondent has been held entitled to
total reimbursement of his expenses incurred in a private hospital. To
appreciate all this it is necessary to shortly give the periphery of the
earlier policy of 1991 and the new policy dated 13th February, 1995.
The old
policy of 1991 was framed in supersession of the earlier Punjab Government's
letter dated 27th May,
1987.
This
is a policy for the reimbursement of the medical expenses incurred on treatment
taken abroad or in a hospital other than the hospitals of the Government of
Punjab (both outside and in the State of Punjab). Relevant portion of the same is quoted hereunder:
"The
person who is in need of medical treatment outside India or in any hospital
outside and in the State of Punjab) as the case may be may make an application
for getting treatment in these hospitals directly to the Director, Health and
Family Welfare, 2 months in advance, duly recommended by the CMO/Medical
Superintendent indicating that the treatment for the disease mentioned is not
available in the hospital of the Government of Punjab. In case of emergency
duly authenticated by CMO/Medical Superintendent the application can be made 15
days in advance.
Director,
Health and Family Welfare, Punjab will
place the application of the employee concerned before the Medical Board within
15 days on the receipt of application. In case of emergency, if immediate
meeting of Medical Board cannot be convened, such application may be circulated
to all the members of the Medical Board and decision taken thereof.
Thereafter
on 8th October, 1991, the policy was further clarified so far as the choice of
hospitals is concerned which is also quoted hereunder:- "Policy for
reimbursement of medical expenses incurred on medical treatment taken abroad
and in hospitals other than those of the Government of Punjab, both within and
outside the State was laid down. However, as per the 12th item of these
instructions, a list of those diseases for which specialised treatment was not
available in the government hospitals was to the prepared in addition to
identifying medical institutions/hospitals/clinics of repute where such specialised
treatment was available. Open Heart Surgery; Escorts heart Institute, New Delhi; Christian medical College, Ludhiana; Apollo Hospital, Madras." We find two significant points in the said policy,
one the procedural and the other nominating few designated hospitals other than
government hospital for treatment. The procedure laid down under this was very
onerous, some times not workable, specially in emergency cases. Under it if one
needs medical treatment either outside India or in any hospital other than the
Hospital of Government of Punjab, an application seeking approval for such
treatment in such hospital has to be made to the Director of Health and Family
Welfare two months in advance duly recommended by CMO/Medical Superintendent
indicating that the treatment for such disease is not available in the hospital
of the Government of Punjab. In cases of emergency such application is to the
authenticated by CMO/MS to be made fifteen days in advance. It is this
procedure which deprived persons from getting prompt and better treatment at
other places. Some of the serious diseases do not knock or warn through bell
giving them time. Emergency cases require immediate treatment and if with a
view to comply with procedure one has to wait then it could be fatal. One may
not in such cases live, if such a procedure is strictly followed. It seems
keeping this in light, the Government in 1991 modified its policies by
including Escorts Heart Institute, New Delhi;
Christian Medical College, Ludhiana and Appollo Hospital, Madras, in case of Open heart Surgery as
the designated hospitals for treatment of such permissible diseases. Government
in its 1991 policy, also reserved its right to revise the list in future. The
listing of the aforesaid designated hospitals was with the approval of the
Finance Department. Thereafter on 9th September, 1994 on the advice of the Finance Department the aforesaid 1991
policy was again modified by withdrawing the clarification dated 8th October, 1991 wherein private hospitals in the
State and outside were recognised for treatment. hence the benefit of the
designated hospitals was no longer available to an employee for being
reimbursed towards his medical expenses.
it is
in this background present that the new policy dated 5th October, 1995 has come in to force. The relevant
portion of the Said State Policy is reproduced below:- " As per
instructions issued vide Punjab Government letter No. 7/7/85 - 5HBV/2498, dated
25.1.1991 the policy regarding reimbursement of medical emphases incurred on
medical treatment taken abroad an din hospitals other than the hospitals of the
Government of Punjab (both outside and inside the State of Punjab) was laid
down. The Government has reviewed the decisions taken in the aforesaid letter
and it has now been decided as under:- TREATMENT AT AIIMS -----------------
District Civil Surgeons shall be competent to permit treatment of a particular
disease at AIIMS, New Delhi on the basis of recommendations of the District
level Standing Medical Board provided the treatment is not available in the
Government Hospitals of the State.
The
expenditure on reimbursable items on such a treatment in AIIMS, New Delhi, shall be reimbursed to Government
employees/pensioners.
TREATMENT
IN PRIVATE HOSPITALS IN THE COUNTRY -----------------------------------
--------- It has been decided that employees and pensioners should be given
freedom to get treatment in any, private institute/hospital (of their own
choice), in the country provided that he/she gives an undertaking out of
his/her free will and in an unambiguous terms that he/she will accept
reimbursement of expenses incurred by him/her on his/her treatment to the level
of expenditure as per rates fixed by the Director, Health and Family Welfare,
Punjab for a similar treatment package or actual expenditure whichever is less.
The rate for a particular treatment would be included in the advice issued by
the District/State medical Board. A Committee of technical experts shall be
constituted by the Director Health and Family Welfare Punjab to finalise the
rates of various treatment packages and the same rate list shall be made
available in the offices of the Civil Surgeons of the State.
However,
this permission would be granted by the Director, health and Family Welfare,
Punjab on the advice of State medical Board in case of treatment in Private
Hospitals outside the State and the District Medical Board in case of treatment
in private hospitals within the State.
It is
further submitted that in an emergent case prior permission could be waived
from the Medical Board but Ex-post facto approval from the Medical Board for
reimbursement of medical expenses is absolutely essential in accordance with
the instructions dated 5.10.1995.
TREATMENT
ABROAD ------------------ The treatment of a disease in a country abroad would
be permitted in extremely rare cases where satisfactory treatment and follow up
should be recommended by the State Medical Board. Prior approval of the State
Medical Board shall be a pre-requisite in such cases. All efforts should be
made by the concerned employee/pensioner to take prior approval of the State
Medical Board." Learned counsel for the respondents strongly relies on the
case of Surjit Singh (supra). The contention is that in that case the claim for
getting reimbursement expenses incurred in Escorts was upheld and hence it
would be impermissible now for the State Government to deny reimbursement of
expenses incurred at Escorts on the basis of the alleged new policy. The
decision under the new policy to reimburse expenses only on the basis of the
rates at the AIIMS, it is contended illegal. Everyone in order to protect his
life has to go wherever best possible treatment is available. If respondent
went to Escorts which was once a designated hospital. The refusal now to
reimburse expenses incurred at Escort has no justifiable ground to stand.
Having
heard learned counsel for the parties at length, we find the Surjit Singh's
case admittedly was based on the old policy. There the medical reimbursement claim,
was admissible at the rate admissible in Escort's, as Escorts's was one of the
designated hospitals. In that case denial of such rate was therefore rightly
rejected. However, strong reliance has been placed by the respondent on the
following paragraphs of surjit Singh vs. State of Punjab (1996 (2) SCC 336 )
which is as under:
"Para
9 - The Policy, providing recognition for treatment of open heart surgery in
the escorts, specifically came to be examined by a Division bench of the Punjab
and Haryana High Court at Chandigarh titled as Sadhu R. Pail vs. State of
Punjab (1994) 1 SLR 283 (P & H) wherein the claim of the then writ
petitioner to medical reimbursement was accepted when in order to save his life
he had got himself operated upon in the Escorts, and the plea of the State that
he could be paid rates as prevalent in the AIIMS was rejected. special leave
Petition No. 22024 of 1995 against the said decision was dismissed by this
Court on 2.2.94." "Para 12- The appellant therefore had the right to
take steps in self-preservation. he did not have to stand in queue before the
Medical Board, the manning and assembling of which, barefacedly, makes its
meetings difficult to happen. The appellant also did not have to stand in queue
in the government hospital of AIIMS and could go elsewhere to an alternative
hospital as per policy." Same argument is submitted for drawing parity
with the said case. Here also it is urged, when one gets heart attack he has to
wait in a long queue, in the government hospital and may be by the time his
turn comes he may not survive. it is hence argued that the medical facility
provided would be futile.
As
aforesaid the said decision would render no assistance to the respondents.
Under the old policy there were designated hospital including Escorts. That was
the foundation of the Said decision. relevant portion in this regard is quoted
hereunder:- "When the State itself has brought for it to contend that the appellant
could in no event have gone to Escorts and his claim cannot on that basis be
allowed, on suppositions. We think to the contrary. In the facts and
circumstances, had the appellant remained in India, he could have gone to
Escorts like many others did, to save his life." (Surjit Singh's case
(Supra).
That
was a case where the petitioner got heart attack being in England and was hospitalised
and operated in Burminghom hospital and this Court held that is as much as
Escort was one of the designated hospital under the old policy of the
reimbursement permissible to the appellant would be at the rate as that of
Escorts and not of AIIMS as ordered by the State.
The
right of the State to change its policy from time to time, under the changing
circumstances is neither challenged nor could it be. let us now examine this
new policy. learned senior counsel for the appellants submits that the new
policy is more liberal in as much as it gives freedom of choice to every
employee to undertake treatment in any private hospital of his own choice any
where in the country. The only clog is that the reimbursement would be to the
level of expenditure as per rates which are fixed by the Director, Health and
Family Welfare, Punjab for a similar package treatment or
actual expenditure which ever is less.
Such
rate for a particular treatment will be included in the advice issued by the
District/State Medical Board for fixing this. Under the said policy a Committee
of Technical Experts is constituted by the Director to finalize the rates of
various treatment packages and such rate list shall be made available to the
offices of the Civil surgeons of the State.
Under
this new policy, it is clear that none has to wait in a queue. One can avail
and go to any private hospital anywhere in India. Hence the objection that, even under the new policy in emergency one
has to wait in a queue as a argued in Surjit Singh case (supra) does not hold
good.
In
this regard Mr. Sodhi appearing for the State of Punjab has specifically stated
that as per the Director's decision under the new policy, the present rate
admissible to any employee is the same as prevalent in AIIMS. It is also
submitted, under the new policy in case of emergency if prior approval for
treatment in the private hospital is not obtained, the ex-post-facto sanction
can be obtained later from the concerned Board or authority for such medical
reimbursement. After due consideration we find these to be reasonable.
Now we
revert to the last submission, whether the new State policy is justified in not
reimbursing an employee, his full medical expenses incurred on such treatment,
if incurred in any hospital in India not being a Government hospital in Punjab.
Question is whether the new policy which is restricted by the financial
constraints of the State to the rates in AIIMS would be in violation of Article
21 of the Constitution of India. so far as questioning the validity of
governmental policy is concerned in our view it is not normally within the
domain of any court, to weigh the pros and cons of the policy or to scrutinize
it and test the degree of its beneficial or equitable disposition for the
purpose of varying modifying or annulling it, based on however sound and good
reasoning, except where it is arbitrary or violative of any constitutional,
statutory or any other provision of law. When Government forms its policy, it
is based on number of circumstances on facts, law including constraints based
on its resources. It is also based on expert opinion. it would be dangerous if
court is asked to test the utility, beneficial effect of the policy or its
appraisal based on facts set out on affidavits. The Court would dissuade itself
from entering into this realm which belongs to the executive. It is within this
matrix that it is to be seen whether the new policy violates Article 21 When it
restricts reimbursement on account of its financial constraints.
When
we speak about a right, it corelates to a duty upon another, individual,
employer, government or authority.
In
other words, the right of one is an obligation of another. Hence the right of a
citizen to live under Article 21 casts obligation on the State. This obligation
is further reinforced under Article 47, it is for the State to secure health to
its citizen as its primary duty. No doubt government is rendering this
obligation by opening Government hospitals and health centers, but in order to
make it meaningful, it has to be within the reach of its people, as far as
possible, o reduce the queue of waiting lists, and it has to provide all facilities
for which an employee looks for at another hospital. Its up-keep;
maintenance
and cleanliness has to be beyond aspersion. To employ best of talents and tone
up its administration to give effective contribution. Also bring in awareness
in welfare of hospital staff for their dedicated service, give them periodical,
medico-ethical and service oriented training, not only at then try point but
also during the whole tenure of their service. Since it is one of the most
sacrosanct and a valuable rights of a citizen and equally sacrosanct sacred
obligation of the State, every citizen of this welfare State looks towards the
State for it to perform its this obligation with top priority including by way
allocation of sufficient funds. This in turn will not only secure the right of
its citizen to the best of their satisfaction but in turn will benefit the
State in achieving its social, political and economical goal. for every return
there has to be investment. Investment needs resources and finances. So even to
protect this sacrosanct right finances are an inherent requirement. Harnessing
such resources needs top priority.
Coming
back to test the claim of respondents, the State can neither urge nor say that
it has no obligation to provide medical facility. If that were so it would be
ex facie violative of Article 21. Under the new policy, medical facility
continues to be given and now an employee is given free choice to get treatment
in any private hospital in India but the amount of payment towards
reimbursement is regulated. Without fixing any specific rate, the new policy
refers to the obligation of paying at the rate fixed by the Director. The words
are;
"
.... to the level of expenditure as per the rate fixed by the Director, Health
and Family Welfare, Punjab for a similar treatment package or actual
expenditure which ever is less." The new policy does not leave this
fixation to the sweet will of the Director but it is to be done by a Committee
of technical experts.
"The
rate for a particular treatment would be included in the advice issued by the
District/State Medical Board. A Committee of technical experts shall be
constituted by the Director, Health and Family Welfare, Punjab to finalize the
roles of various treatment packages." No State of any country can have
unlimited resources to spend on any of its project. That is why it only
approves its projects to the extent it is feasible. The same holds good for
providing medical facilities to its citizen including its employees. Provision
of facilities cannot be unlimited. It has to be to the extent finance permit.
If no scale or rate is fixed then in case private clinics or hospitals increase
their rate to exorbitant scales, the State would be bound to reimburse the
same. Hence we come to the conclusion that principle of fixation of rate and
scale under this new policy is justified and cannot be held to be violative of
Article 21 or Article 47 of the Constitution of India.
In
Vincent vs. Union of India: AIR (1987) SC 990:
"In
a welfare State, therefore, it is the obligation of the State to ensure the
creation and the sustaining of conditions congenial to good health..... In a
series of pronouncements during the recent years, this court has culled out
from the provisions of Part- IV of the Constitution, the several obligations of
the State and called upon it to effectuate them in order that the resultant
picture by the constitution fathers may become a reality." The next
question is whether the modification of the policy by the State by deleting its
earlier decision of permitting reimbursement at the Escort and other designated
hospital's rate is justified or not? This of course will depend on the facts
and circumstances. We have already held that this court would not interfere
with any opinion formed by the government if it is based on relevant facts and
circumstances or based on expert advice.
Any
State endeavor for giving best possible health facility has direct co-relation
with finances. Every State for discharging its obligation to provide some
projects to its subject requires finances. Article 41 of the Constitution gives
recognition to this aspect. 'Article 41:
Right
to work, to educate and to public assistance in certain cases: The State shall,
within the limits of its economic capacity and development, make effective
provisions for securing the right to work, to education and to public
assistance in cases of unemployment, old age sickness and disablement, and in
other cases of undeserved want.' It is submitted by the appellants that earlier
under the 1991 policy, for bringing in some of the designated Hospital for
treatment, sanction from Finance department was obtained. Later upon an
appraisal of its expenditure it was found that the bulk of the States budget
was being taken by few elites for such treatment like Heart ailment etc. to the
detriment of large number of other employees who suffered.
hence
on the advise of the Finance department by means of order dated 9th September,
1994 the facility of reimbursement of full charges at designated hospital was
withdrawn even under the old policy of 1991 from 9.9.94.
Financial
constraints on the State is also evident from what is recorded in the case of Waryam
Singh (supra), which is also a case from Punjab:- " Para 30 - When Civil
Writ Petition No. 16570 of 1995, the Court issued a notice to the respondents
to show cause as to why a direction may not be issued to the Government to
decided all pending matters of medical dated 16.11.1995, the learned Government
counsel produced before the Court a list of cases pending in 57
departments/offices of the Government of Punjab. these lists show that over
20,000 cases involving claim of medical reimbursement ar pending in the various
departments/offices of the Government. In some cases, the claim is for as small
amount as of Rs. 10/- and as high as of Rs.1,75,000/-. these lists also show
that some cases of medical reimbursement are pending for last more than six
years. In other cases, the duration of pendency is less. Reasons given in
majority of the cases are absence of sanction of paucity of funds."
Learned Counsel for the appellant submits that in the Writ petition filed, the
respondent did not specifically challenge the new policy of 1995. If that was
done the State would have placed all such material in detail to show the financial
strain. We having considered the submission of both the parties, on the
aforesaid facts and circumstances, hold that the appellant's decision to
exclude the designated hospital cannot be said be such as to be violative of
Article 21 of the Constitution. No right could be absolute in a welfare State.
A man is a social animal. He cannot live without the cooperation of large
number of persons. Every article one uses is the contribution of many. Hence
every individual right has to give way to the right of public at large. Not
every fundamental right under Part III of the Constitution is not absolute and
it is o be within permissible reasonable restriction. This principle equally
applies when there is any constraint on the health budget on account of financial
stringencies. But we do hope that government will give due consideration and
priority to the health budget in future and render what is best possible.
For
the aforesaid reasons and findings we uphold governments new policy dated 13th February, 1995 and further hold it not to be violative
of Article 21 of the Constitution of India.
In the
Civil Appeals arising out of SLP(C) Nos.13167/97 and 12418/97, the surgery at
Escorts was after the introduction of the new policy and therefore the extent
of medical reimbursement can be only according to the rates prescribed by
AIIMS. However, the respondents therein are not entitled to the full
expenditure that was incurred at Escorts. We therefore, allow the appeals in
part and direct that the respondents are entitled to reimburse only at AIIMS
rate. The appellant will therefore reimburse the respondents to the extent
within one month from today.
The
appeals arising out of SLP (C) No. 12143/97 and 12144/97 though the treatment
at Escorts was after the new policy the amount as claimed has already been paid
at Escorts rates. On the facts and circumstances of this case, we are not
inclined to interfere and therefore no question of any refund arises. These
appeals are dismissed.
So far
as the appeal arising out of SLP (C) No.11968/97 is concerned, we find that the
respondent had the heart attack on 9th February, 1995 and was advised to go to
Delhi on 18th February, 1995 but on account of long strike in the All India
Institute of medical sciences (AIIMS) he was admitted in the Escorts. On those
facts we are not inclined to interfere. the respondents has been paid at the
admissible are the in AIIMS but claims the difference between what is paid and
what is admissible rate at Escort.
Looking
to the facts and circumstances of this Case we hold that the respondent in SLP
(C) No. 11968/97 is entitled to be paid the difference amount of what is paid
and what is the rate admissible in Escorts then. The same should be paid within
one month from today. We make it clear reimbursement to the respondents as
approved by us be not treated as precedent but has been given on the facts and
circumstances of these cases.
For
the reasons and findings recorded herein before, the new policy dated 13th
February, 1995 is upheld. The impugned High Court orders to that extent are set
aside, Appeals arising out of SLP(C) Nos. 13167 and 12418 of 1997 are allowed
to the extent indicated above and are disposed of accordingly. Appeals arising
out of SLP (C) Nos. 12143, 12144 and 11968 of 1997 are dismissed, subject to
the further direction given in the appeal arising out of SLP (C) No. 11968 of
1997. There will be no order as to costs.
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