State Of Rajasthan vs Mahesh Kumar Sharma

STATE OF RAJASTHAN ...APPELLANT

VERSUS

MAHESH KUMAR SHARMA ...RESPONDENT

J U D G M E N T

GOKHALE J.

Leave granted.

2. This appeal by special leave by the State of Rajasthan is preferred

against the judgment dated 5th September, 2007 of a Division Bench of the

High Court of Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal

No. 749 of 2007 dismissing the appeal filed by the appellant against the

judgment and order passed by a learned Single Judge of that Court dated 12th

September, 2006 in Civil Writ Petition No. 2611 of 2006.

3. The facts giving rise to the present appeal are thus:-

The respondent was an employee working in the District & Sessions

Court at Balotra, Rajasthan. He had gone to Uttaranchal on leave where he

suffered a heart ailment. On his way back to Balotra, he suddenly fell ill and

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got admitted in the Escort Heart Institute in New Delhi and was operated for

by-pass surgery. He claimed the reimbursement of the full medical expenses

from the State of Rajasthan. The State Government accepted his request to a

limited extent and granted him reimbursement upto an amount of Rs. 50,000/-

which was permissible as per the Rules.

4. The respondent felt aggrieved and hence filed a writ petition which

was allowed by the learned Single Judge and the appeal therefrom was

dismissed by the Division Bench and hence this appeal by special leave by the

State of Rajasthan.

5. The Division Bench as well as the Single Judge have relied upon a

judgment of a Division Bench of the Rajasthan High Court viz Shankarial Vs.

State of Rajasthan reported in 2000 3 WLC (Raj.) 585. What had happened in

that case was that the wife of the appellant had similarly gone along with him

outside Rajasthan where she had suffered a heart problem. She was taken to

Escort Heart Institute in New Delhi where she was operated. The

reimbursement of the expenditure of her surgery was declined by the

Government. She filed a writ petition which was allowed by the Division

Bench.

6. The learned counsel for the appellant points out that the Division

Bench of the High Court had erred in relying upon Rule 7 of the Rajasthan Civil

Services (Medical Attendance) Rules, 1970 as against Rule 6 thereof. He

points out that the Rule 6 of those rules is the relevant rule which applies to a

situation where an employee goes outside the state and falls sick. Rule 7 deals

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with a situation where a Government servant is not in a position to obtain the

necessary medical treatment for the decease in the State of Rajasthan which is

a different situation and in which case he is permitted the treatment in the

hospitals which are mentioned in Appendix-11 of the Rules. Rule 6(1),

according to him, is the relevant rule which reads as under:-

6. Medical attendance and treatment outside

Rajasthan:-

(1) A Government servant including members of his

family posted to a station or sent on duty or spending

leave or otherwise at a station outside Rajasthan in India

and who falls ill shall be entitled to free medical

attendance and treatment as an indoor and outdoor

patient in a hospital maintained by the Central

Government or other State Government on the scale and

conditions which would be admissible to him under these

rules, had he been on duty or on leave in Rajasthan.

7. As stated above, Rule 7 deals with the treatment of a decease for

which treatment is not available in the State of Rajasthan. Certainly it cannot

be contended and it is not so contended by the respondent that treatment for

a heart surgery is not available in the State of Rajasthan. The learned counsel

for the respondent contended that the Escort Heart Institute, New Delhi has

been included in the Appendix 11 by the office memorandum dated 25th

August, 1989 and has been approved and recognized by State of Rajasthan.

Rule 7(1) itself points out that such institute can be approached for surgery

but only for which treatment is not available in Rajasthan. Rule 7(1) reads as

under:

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7. Treatment of a disease for which treatment

is not available in the State :-

(1) A Government servant and the members of his

family suffering from a disease for which treatment is

not available in any Government Hospital in the State

shall be entitled to medical attendance and treatment

to the extent indicated in sub rule (2) of this rule in a

Hospital/Institution outside the State recognised by

the Government, provided that it is certified by the

Principal of a Medical College/Director of Medical &

Health Services on the basis of opinion of the

Authorised Medical Attendant to the effect that the

treatment of a particular disease from which the

patient is suffering is not available in any Government

hospital in the State and it is considered absolutely

essential for the recovery of the patient to have

treatment at a hospital outside the State.

This being the position, in our view, the learned Single Judge as well

as the Division Bench and the earlier Division Bench which decided

Shankarial's case (supra) erred in relying upon Rule 7(1) and granting full

reimbursement of the expenses which were incurred by the employee

concerned while taking treatment in the Escort Heart Institute, Delhi.

8. In this connection it will be profitable to refer to the judgment of a

Bench of three Judges of this Court in State of Punjab and Others Vs. Ram

Lubhaya Bagga and Others reported in (1998) 4 SCC 117 where the Bench has

laid down that the Government would be justified in limiting the medical

facilities to the extent it is permitted by its financial resources. In the instant

case, the Government has formulated necessary rules permitting the

reimbursement of medical expenses in certain situations and upto a certain

limit. The Government has been reimbursing the necessary expenditure as

permitted by the rules uniformly. It will, therefore, not be proper for a

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Government employee or for his relatives to claim reimbursement of medical

expenses otherwise than what was provided in the Rules.

9. In the circumstances, we allow this appeal and set aside the

Judgment rendered by the Division Bench as well as by the Single Judge. The

writ petition filed by the respondent will stand dismissed.

10. Although, this appeal is being allowed, we are informed that the

respondent has already been paid the amount which was directed under the

Judgment dated 12.9.2006 of the Single Judge in January, 2008 and that the

respondent has subsequently retired from the service. It is clear that the

reimbursement was done in view of the then prevent interpretation of the

relevant rules in Shankarilal's case (supra). This being the position, in the

facts and circumstances of the case, the appellant government will not recover

the amount which has been paid to the respondent, nor will the government

recover any amount which has been similarly paid to other employees seeking

such medical reimbursement under Shankarial's judgment which was prevalent

so far. However, it is now made clear that the judgment in Shankarial's case

does not lay down the correct law, and stands over-ruled. The legal position

as explained herein above shall apply hereafter.

11. The appeal is allowed and disposed of accordingly. However, there

shall be no order as to the costs.

....................J.

(J.M. PANCHAL)

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....................J.

(H.L. GOKHALE)

NEW DELHI;

DATED MARCH 2, 2011