Manmohan Sarin, J.

Petitioner, a retired Addl. District and Sessions, Delhi by this petition seeks a writ of certiorari, quashing orders dated 13.5.2000 and 24.7.2000, rejecting his claim for medical reimbursement. Petitioner seeks a writ of mandamus directing respondents to sanction and release his medical claim of Rs.2,00,239/- (Rupees Two lacs two thirty nine only). Petitioners claim for reimbursement of medical expenses relates to the angioplasty with a stent being fixed at the Escorts Heart Institute and Research centre (hereinafter referred to as the EHIRC) during 19th to 23rd October, 1999.

2. Petitioner had been compulsorily retired by Delhi High Court on 1.6.1993. Petitioner challenged the said order by way of a writ petition bearing No.4354/93. The Division Bench allowed the writ petition on 18.2.2000. As a result of the writ petition being allowed, it was held that the petitioner continued in service with all consequential benefits till the date of his superannuation i.e. 31.8.1998.

3. Petitioner applied for becoming member of the Scheme providing medical facilities to the employees/ pensioners of Delhi Government, vide his letter dated 14.10.1999. Petitioner notified his basic scale of pay as 5,700/- per month at the time of retirement. He requested for issuance of the health card. The application was duly received by the respondent, Competent Authority. Respondents noted that the officer (petitioner) had not been drawing pension for the reasons not known and approval was sought for issuance of medical card. It appears that the application was not processed, since the petitioner had not been drawing pension, though the factum of retirement was on record, on account of endorsement made on 3.6.1993. Pension papers were being a waited for processing the application. Subsequently on 20.1.2000, the Executive Officer allowed the application and required the subscription amount of Rs.600/- to be deposited. The petitioners case is that after his compulsory retirement, on account of writ petition filed challenging his compulsory retirement in which he ultimately succeeded, he had in the interregnum not drawn pension.

4. Be that as it may, even when subsequently on 20.1.2000, the membership of the Health Scheme was granted to the petitioner, it was done prior to the disbursement of pension to the petitioner. Petitioners claim for pension was made only subsequent to the judgment of Division Bench allowing writ petition.

5.Petitioners claim for reimbursement has been denied by respondents on the ground that when the treatment was received, petitioner was not a member of the Health Scheme and he became member of the health scheme, when the subscription was deposited on 22.1.2000 and the card was prepared and issued on 24.1.2000.

6. On merits, respondent No.4 in the counter affidavit has taken the position that the petitioner had been referred to Sir Ganga Ram Hospital in June, 1999. He had been advised angioplasty, but he did not get the angioplasty done. It is claimed that there was no reference made to the EHIRC for treatment. It is contended that this was not a case of an emergency. Petitioner after angiography in June, 1999 had been advised angioplasty. At that time EHIRC was not an empanelled hospital.

7. As per the clarification No.F.27(9)/97-MandPH/7865 dated 28.3.2002, Annexure R-4/1, issued by Health ad Family Welfare Department, Delhi Government, the reimbursement was to be made only in case, claimant was a member of the Delhi Government Health Scheme and it was prospective. Simply because of tendering of subscription amount later, petitioner could not be given benefit with retrospective effect. It was averred that the prescription issued by Escorts Heart Institute and Research Centre, Annexure R-2, would show that the petitioner had been attending hospital with complaint of recurrent synoscope since 1996, with diabetes mellitus since three years with history of pain in back, sweating and blurring of vision since June, 1999. In short, the submission is that the petitioner was not a member of the Health Scheme when he received the treatment. Petitioner had been ailing and had gone to EHIRC, without reference or prior permission. He was diagnosed as a case of Inferior Wall Myocardial Infarction in June, 1999, but did not receive treatment. The treatment at EHIRC was not an emergent one.

8. Lastly learned counsel for respondents submitted that the petitioner sought membership of the claim just before he had planned to have his treatment which shows that there was no emergency.

9. Petitioners case on the other hand is that he had duly applied for the issuance of the health card. Petitioner was told that he would be issued the same in the due course. Petitioner was never notified of any formality required to be completed by the petitioner. He was only required to make the deposit of subscription amount when called upon, which he did. In fact it were the respondents who had, for totally untenable reasons, not processed the petitioners application and issued the challan. Petitioner should not be made to suffer on account of delay caused by the office of District and Sessions Judge, Delhi. Petitioner placed reliance on the essentiality certificate dated 22.4.2003, which shows that the petitioner underwent angioplasty as a life saving measure. Regarding the angioplasty being advised by Sir Ganga Ram Hospital in June,1999, it is urged that prior to going in for angioplasty or bye-pass surgery or any of the invasive procedure, it is but natural for a patient to attempt treatment by medicines.

10. Petitioner had also consulted Dr.R.K.Karoli, former Head of the Cardiology Department, Dr.R.M.L. Hospital and got other tests such as Thalium done. Since his condition did not improve and on 19.10.1999 it deteriorated all of a sudden, he had to be rushed to EHIRC.

11. Having noted the factual matrix, respective contentions and examined the documents produced on record, the first question to be considered is whether the petitioner had done all that was required for obtaining the membership The petitioner had duly submitted his application on 14.10.1999. The factum of petitioner being eligible for membership is not disputed. From the record it appears that the only reason, the membership was not processed by the respondents is the non drawl of pension by the petitioner. Petitioner has a tenable explanation for the same. On account of his challenge to the compulsory retirement order in writ petition, he had not drawn the pension. The factum of retirement was on record. The petitioners case for membership could not have been held back for non-payment of pension. Respondents had been notified of the basic scale of pay and subscription payable could be informed to the petitioner. In any case, it was processed prior to petitioner submitting the papers for pension. Hence it is held that the petitioner was eligible for membership and had done all that was required of him to obtain the membership. The benefit cannot be denied in case the membership has been wrongfully withheld.

12. Coming to the clarification on which reliance is placed at page 77 it would be useful to reproduce the same:-

Whether the contribution for the Scheme is to be recovered from 1.4.1997 or from the date application by the govt. official for enrolment as member of the Scheme

Delhi Government Health Scheme is optional for the employees of GNCTD, since the reimbursement is made only in case the individual is a member DGHS and is only prospectively effective from the date one tenders his/her subscription amount and no benefit in extended whatsoever from retrospective effect, it has been decided that subscription amount shall be recovered from the employees from the date they apply for becoming the member of DGHS.

Who can become member of the Scheme

The Scheme is not applicable to employees who are entitled for any other medical allowance/ medical facilities. Otherwise all employees of GNCTD may become the member of the Scheme.

13. The clarification is to the effect that benefit under the Scheme is prospective and from the date subscription is tendered. Benefit is not to be with retrospective effect. The clarification also mentions that ‘‘It has been decided that subscription amount shall be recovered from the employees from the date they apply for becoming the member of DGHS.’‘ This would tend to show that recovery has to be from the date of application. It is also indicated that the subscription amount is to be recovered either from the pay or pension as the case may be. In the instant case the membership has been withheld for reasons which are extraneous and not tenable. Hence petitioner is entitled to the benefit from the date of his application.

14. There is also no merit in the objection that since the petitioner had been referred to Sir Ganga Ram Hospital in June, 1999 and had been advised angioplasty and having failed to get the same done would disentitle him to the claim for reimbursement. For a person suffering from cardiovascular disease, the natural instinct of the patient is to avoid cardiac invasive procedures and try conventional treatment. This is what the petitioner did. Petitioners case is that on 19.10.1999, his condition deteriorated and emergency treatment had to be given. The EHIRC and its renowned cardiologist have so certified. In cardiac disease, an emergent situation arising is not unusual. There is no reason to disbelieve the petitioner simply because he had been a patient of cardiovascular disease or had earlier been advised angioplasty. These are no grounds which would disentitle the petitioner from receiving the health benefits which are integral to right to life. EHIRC happens to be an empanelled hospital presently. Even if at the relevant time, it was not an empanelled hospital as urged by the respondent and treatment had been received there without reference by the government official, the petitioner would be entitled to reimbursement of medical expenses, in any case, as per the CSMA Attendant Rules and rates.

15. Learned counsel for the petitioner on instructions submits that rather that joining issue on this score and even though in a number of cases in emergency treatment, reimbursement has been given of the expenses incurred at EHIRC rates, petitioner confines the claim for reimbursement to the amount as processed by the respondents under the CSMA Rules which, from documents on record, was Rs.1,13,950/-.

16. Accordingly, the writ petition is allowed and writ of mandamus shall issue to respondents to reimburse the amount of Rs.1,13,950/- (Rupees One Lac Thirteen Thousand Nine Hundred Fifty only) as claimed by the petitioner within two months from today failing which they shall be liable to pay interest at the rate of 9% on the said amount till the date of payment.