UMA SHANKER BHARGAVA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE facts in this case are not very much in dispute. THE petitioner is a member of the Rajasthan Higher Judicial Service and is currently working as Special Judge (CBI Cases), Jodhpur. He is suffering from aortic regurgitation, coronary artery disease, reheumatoid mild hypertension, ankylosing spondylitis, effort breathlessness-Gr. I and emotional angina. As back as 1983, he was referred to Bombay Hospital, Bombay for treatment of his ailments and since then, he has been periodically visiting the said hospital for check up and consultation. Rajasthan Civil Services (Medical Attendance) Rules, 1970, hereinafter called 'the Rules', regulate the reimbursement of expenses incurred in connection with the treatment of an employee of the State and apply to the petitioner. Rule 7 of the Rules provides for treatment of a disease for which treatment is not available in the State. THE rule, inter alia, provides the procedure for obtaining such treatment and also provides what charges/expenses shall be reimbursable. In terms, the rules does not speak of treatment abroad but by virtue of Rule 12, the Government has been relaxing the provisions of rule 7 and has been permitting its officers to go abroad for treatment. It has been reimbursing these officers of the charges/expenses incurred in connection with such treatment to certain extent. Advances were also made in connection with such treatment. Following officers were permitted to avail of such facility in the recent past. (1) Shri A. K. Bhargava, Additional Chief Engineer, P. H. E. D. (2) Shri Gopesh Bhatta, I. A. S. (3) Shri B. P. Bhargava, I. A. S. (4) Shri O. P. Bhargava, R. A. S. (5) Shri Dardi, Executive Engineer, P. H. E. D. and Doctors. (6) Shri S. C. Mathur, & (7) Shri A. B. L. Mathur.

(2.) THE case of the petitioner is that his ailments have been aggravated recently and hence the Registrar, Rajasthan High Court recommended his case, to the Govt. of Rajasthan, for open heart surgery in Houston (U. S. A.) vide Annex. I. In this connection, the petitioner was examined by a Medical Board constituted by the Principal and Controller, Dr. Sampurnanand Medical College and allied hospitals vide Annex. 4. THE Board gave its report Annex. 5, recommending the petitioner for surgery abroad. On the basis of this report, the said Principal also recommended the petitioner for surgery abroad vide Annex. 6. In this very connection, the Deputy Secretary to the Govt. in Law & Legal Affairs Department of the State desired the petitioner to send some further information and material and also asked him to provide a report from the Principal, S. M. S. College, Jaipur. Dr. S, R. Mehta, Principal, S. M. S. Medical College, Jaipur issued his certificate Annex. 8 on 29. 12. 1988 in this regard, recommending valve replacement, coronary angiography and Bypass surgery. THE case of the petitioner was, then, processed in the government. It may, here, be stated that at no time during such processing, the reports of the Medical Board or of the Principals Dr. Sampurnanand Medical College, Jodhpur and S. M. S. College, Jaipur were questioned or doubted. Eventually, the govt. by its order Annex. 9 informed the Registrar, Rajasthan High Court that the Govt. has taken a decision that if a govt. servant wants treatment abroad for better facilities, or better patient care/after operation care, he may do so at his own expenses and the Govt. may consider reimbursement only to the extent of actual hospital expenses which would have been (incurred) if the treatment was (taken) within India. Thus practically, the request of the petitioner for treatment abroad at govt. expenses was turned down.

(3.) WE may state at the outset of this discussion that the Rules have been promulgated by the Governor of Rajasthan in exercise of his rule making power conferred by proviso to Art. 309 of the Constitution of India. Thus, these Rules are statutory in nature. Relaxation to be granted in favour of the petitioner, as in case of other officers in the past, was to be made/declined by the govt. in exercise' of its statutory power, vested in ii by Rule 12, which reads as under: - "12. Savings.- Nothing in these rules shall be deemed to : (1) entitle a government servant to reimbursement of any cost incurred in respect of medical services obtained by him or to travelling for any journey performed by him otherwise than as expressly provided in these rules; or (2) prevent the government from granting to a Government servant any concession relating to medical treatment or attendance or travelling allowance for any journey performed by him which is not authorised by these rules. " Precisely, it is clause (2) of this rule, which enables the govt. to permit its officers to go abroad for treatment.