RUNU RAJKUMARI PHUKAN Vs. STATE OF ASSAM

JUDGEMENT

(1.) This is an application under Article 226 of the Constitution relating to the claim of a Government servant of the Government of Assam for reimbursement of expenditure made by her for kidney transplantation and monthly expenses incurred by her for purchase of medicines etc. after kidney transplantation.

(2.) The relevant facts as stated in the writ petition are that the petitioner has been working as Assistant Teacher in Karanga Gazipuria High School, at Gajpuria, Jorhat, since 1.1.82. In the year 1992, the petitioner fell seriously ill and she was brought to the Guwahati Medical College & Hospital, Guwahati, on 5.5.92, where she was treated as indoor patient in the Nephrology Unit. At the Gauhati Medical College & Hospital, it was detected that the petitioner was suffering from Chronic renal failure and that both her kidneys were damaged. At the time of her discharge on 9.5.92 from the Gauhati Medical College & Hospital, Guwahati, she was advised to come back after seven months with a relative who could donate a kidney for her. When she returned to her home at Jorhat, her condition again became serious and she was adviced by a local doctor at Jorhat to immediately go to a good hospital for kidney treatment. The petitioner accompanied by her husband immediately rushed to Apollo Hospital at Madras and the petitioner was administered dialysis during the period from 11.6.92 to 16.6.92 at the said hospital. When her condition did not improve and it was confirmed that her both the kidneys were damaged, the petitioner was advised for kidney transplantation. At the Apollo Hospital, however, kidney transplanted with a kidney donated by relative and not by others. Since the petitioner did not have a relative donor, she was advised to try at Lady Willingdon Hospital at Madras and discharged her from Apollo Hospital on 17.6.92. Thereafter she was admitted in Lady Willingdon Hospital on 3.7.92. At lady Willingdon Hospital the petitionsr was administered dialysis 27 times and in the meanwhile a non-relative donor was arranged and the patient was shifted to Guest Hospital for operation where transplantation of kidney was done by Dr. KC Reddy on 9.10.92, The petitioner remained in Guest Hospital for 25 days and thereafter she was shifted to a rented cottage at Madras for post operative treatment under the Medical and Health Care Centre, Madras. Both the petitioner and her husband remained in Madras for long seven months for the aforesaid kidney transplantation and follow up treatment and finally returned to Jorhat in January, 1993. Thereafter she has been going to Madras for check-up and review from time to time. The case of the petitioner is that for the aforesaid kidney transplantation and follow-up treatment during seven months stay at Madras she incurred expenditure of Rs. 2.75 Lakh and thereafter she has been incurring expenditure of Rs. 6,000/.- to 8,000/- per month for medicines. For the aforesaid expenditure incurred by the petitioner, she received Rs. 20,000/- from Prime Minister's Welfare Fund, Rs. 1500/-From Chief Minister's Welfare Fund and Rs. 1000/- from Teacher's Welfare:Fund and she mobilised the rest of the amount by selling the scooter of her husband, from personal savings of petitioner and her husband and from loans taken from different sources as indicated in paragraph-12 of the writ petition. On 25.12.95, she submitted an application before the Director of Health Services, Assam for reimbursement of the expenditure incurred by her for afore said treatment and purchase of medicines from time to time. The Director of Health Services, Assam, forwarded a proposal to the Government of Assam in the Health and Family Welfare (A) Department in his letter dated 26.12.95. But the said proposal was turned down by the Joint Secretary to the Government of Assam, Health and Family Welfare (A) Department in his communication dated 16.2.96 to the Director of Health Service, Assam, on the grounds that the petitioner underwent treatment at Apollo Hospital at Madras on her own accord and that the hospital was not recognised during the relevant period. A copy of the said communication dated 16.2.96 was marked to the petitioner who submitted another application dated 19.4.96 to the Government of Assam in the Health and Family Welfare (A) Department. But by communication dated 29.5.96, the Under Secretary to the Government of Assam, Health and Family Welfare (A) Department informed the petitioner that the Government stikes to it earlier decision conveyed to the petitioner in the communication dated 16.2.96. In the said communication dated 29.5.96 it was mentioned that the petitioner had already received financial assistance for her treatment at Apollo Hospital from some other sources, namely Prime Minister's Relief Fund, Chief Minister's Relief Fund and Teacher's Welfare Fund. Thereafter by communication dated 15.11.97 of the Government of Assam in the Education (Secondary) Department, the petitioner was informed that the Government had regretted its inability to agree to the proposal for treatment outside the State in the two institutions, namely Apollo Hospital and Guest Hospital, Madras, in view of absence of specific approval of RMB/DHS/H&FW Department. Aggrieved the petitioner has moved this Court for quashing the said communications dated 16.2.96 and 15.11.97 of the Government of Assam in the Health & Family Welfare (A) Department and the Education (Secondary) Department respectively.

(3.) At the hearing Mr. GP Bhowmik, learned counsel for the petitioner, submitted that the reasons given by the State Government in the communications dated 16.2.96, 29.5.96 and 15.11.97 (Annexure-X,XI and XII to the writ petition) for not agreeing to the proposal for reimbursement of the expenditure incurred by the petitioner for transplantation of kidney and purchase of medicine for post operative treatment are not valid reasons. The first reason given under the said communications is that the petitioner went for treatment in Madras on her own accord without prior approval of RMB/DHS/H&FW(A) Department. But as the condition of the petitioner was very serious at Jorhat in May and June, 1992, she had no option but to rush to Apollo Hospital at Madras and thereafter to the Lady Willingdon Hospital and guest Hospital at Madras and thereafter to the Lady Willingdon Hospital at Madras for treatment and she could not possibly wait for the prior approval of the authorities. Mr. Bhowmik submitted that Rule 11 of the Assam Medical Attendance Rules, 1976, itself, provided that such prior approval was not required when delay involved in getting prior approval may entail danger to the patient. The second reason given in the said communication for not entertaining the proposal for the reimbursement of medical expenditure incurred by the petitioner for transplantation of kidney and purchase of medicines for post operative treatment is that Apollo Hospital, Lady Willingdon Hospital and Guest Hospital at Madras were not recognised during the relevant period. Mr. Bhowmik pointed out that the Government has the power to reimburse the medical expenditure for treatment of a government servant in a hospital other than those recognised in special circumstances and in fact has exercised such powers in many other cases. He referred to Anenxures-XIII, XIV, XV and XVI to the writ petition to show that the Medical expenses have been approved for reimbursement by the Government in the cases of Smt Nizara Bhuyan, Sr. Accountant Assistant, Treasury Office, Sibsagar, at Willingdon Hospital at Madras, Sri Munindra Das, Assistant Engineer, PHE, Guwahati, at the Down Town Hospital at Guwahati and at the Popular Nursing Home, Patna, Sri PC Gay an, UDA, office of the Directorate of Soil Conservation, Assam, at Down Town Hospital, Guwahati, Sri Makhan Chandra Baruah, Executive Engineer, PWD, at Tamilnadu Hospital and Bijoya Health Centre, Madras, Smt. Guna Gogoi, Receptionist, Gana Sewa Bhawan, Dispur, at Batra Hospital, New Delhi, instead of AIMS, New Delhi, Smt Geetanjali Goswami, wife of Sri JC Goswami, Director of Elementary Education, Assam, at Breach Candy Hospital, Bombay though the said hospitals were not recognised at the relevant: times and prior approval of the authority was not taken before treatment. Mr. Bhowmik vehemently argued that refusal on the part of the State Government in the Health and Family Welfare (A) Department to allow such reimbursement of medical expenditure incurred by the petitioner at the hospitals at Madras on the grounds that the said hospitals were not recognised and that no prior approval was taken from the authority before treatment was discriminatory and violative of rights of the petitioner to equality under Article 14 of the Constitution. The Government Advocate, Assam on the other hand, sought to support the stand of the Government of Assam in the Health and Family Welfare(A) Department in the impugned communications for not agreeing to the proposal for reimbursement of Medical expenditure incurred by the petitioner for transplantation of kidney in hospitals at Madras and purchase of medicines for post operative treatment in the impugned communications.