ORDER :

1. The respondent-employer did not approve the medical reimbursement claim of the petitioner-employee in respect of his knee replacement operation carried out in a private hospital in New Delhi, which is not empanelled with the State of Himachal Pradesh. Aggrieved, petitioner has, therefore, filed this writ petition.

2. Facts:

(i) As per the pleadings, the respondent-Board has adopted the medical reimbursement policy issued by the State of Himachal Pradesh for reimbursement of medical claims. According to this policy, both outdoor and indoor patient treatment/diagnostic tests taken in government as well as empanelled private hospitals/health institutions/diagnostic labs located within and outside the State of Himachal Pradesh are reimbursable subject to restrictions stipulated therein. Clause 9.9 of this policy pertains to situations where medical treatment taken in non-empanelled institutions in emergency is reimbursable subject to restriction of rates at par with the rates of Indira Gandhi Medical College and Hospital (IGMC), Shimla. In case the treatment is not available in IGMC, Shimla, then the reimbursement is to be at the rates prescribed in PGIMER Chandigarh/AIIMS Delhi/CGHS or actual, whichever is less. Clauses 9.9 and 9.10 in this regard read as under:

“9.9. In case treatment is taken in a non-empanelled institution in emergency, reimbursement shall be restricted to the rates of IGMC Shimla/Government Dental College, Shimla. In case the procedure/treatment is not available in the IGMC, Shimla/Government Dental College, Shimla the rates of PGIMER Chandigarh/AIIMS, Delhi/CGHS or actual whichever is least shall apply. In case there are no such rates the CGHS rates or actual whichever is less shall apply.

9.10. In cases where there are no CGHS Rates, the procedure being adopted under the CGHS will be applicable to the State of Himachal.”

Clause 11 of the policy stipulates that in case treatment is taken in emergency in an institution that is not empanelled within and/or outside the State, the question whether there was an emergency or not, being a question of fact, will be decided by the administrative department. This clause reads as under:

“11. Emergency treatment in a non-empanelled institution: In case treatment is taken in emergency in an institution that is not empanelled or diagnostic tests are undertaken in a lab which is not empanelled within and/or outside the state, the question whether there was an emergency or not, being a question of fact, will be decided by the A.D. concerned. There will be no need to seek permission of the Government or Department of Health and Family Welfare in such cases. The decision of the A.D. whether there was an emergency or not shall be final.”

Clause 12 of the policy stipulates that treatment for Cancer, Renal Failure/Kidney Transplant, the patient/dependent will be allowed to undergo treatment in any super-specialty hospital whether empanelled or not, subject to the condition that the reimbursement amount will be restricted to CGHS rate or actual, whichever is less.

(ii) The petitioner on 11.09.2018, applied to his employer/respondent for permission to undergo knee transplant operation from Apollo Hospital, Sarita Vihar, New Delhi. The petitioner stated in the application that he was suffering from knee pains and was advised to undergo knee transplant operation or else in future, he would not be in a position to walk. That medical experts had advised him to undergo this operation at Apollo Hospital, New Delhi. The said hospital was not empanelled with H.P. Government/HPSEBL (respondent employer). That his family members were settled in Delhi and could look-after him there during and post his operation. He further stated in the application that his operation dates, tentatively had been fixed by Apollo Hospital during second and third week of October, 2018.

(iii) The application of the petitioner seeking permission to undergo operation/replacement of his knees in the above-mentioned