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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