STATE OF RAJASTHAN Vs MAHESH KUMAR SHARMA
Bench: J.M. PANCHAL,H.L. GOKHALE, , ,
Case number: C.A. No.-002278-002278 / 2011
Diary number: 36968 / 2007
Advocates: MILIND KUMAR Vs
V. J. FRANCIS
REPORTABLE
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2278 OF 2011 (@ SLP(C) NO. 2888/2008)
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
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