SBCWP No.4878/07 Jai Prakash Vs. RSRTC & Ors. -{1}- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :::: ORDER Jai Prakash vs Rajasthan State Road Transport Corporation & Ors. S.B. CIVIL WRIT PETITION NO. 4878/2007 DATE OF ORDER : 16th September, 2008 PRESENT HON'BLE MR. H.R. PANWAR, J. Mr. Prithvi Raj Singh,for the petitioner. Mr. PK Lohra,for the respondents. <><><> BY THE COURT: By the instant writ petition filed under Article 226 of the Constitution of India, the petitioner is seeking direction to the respondents to reimburse his entire medical claim amounting to Rs.1,63,803/-, the total expenses incurred by the petitioner vide Annexs.4 and 5 for his treatment of Coronary Artery Angio Plasty with Stenting Operation at Bombay Hospital & Research Center, Munbai. The facts and circumstances giving rise to the instant writ petition are that the petitioner being the employee of the respondent Rajasthan State Road Transport Corporation (for SBCWP No.4878/07 Jai Prakash Vs. RSRTC & Ors. -{2}- short RSRTC) on the post of Regional Manager proceeded on earned leave on 20th June, 2005 to Mumbai to attend family function in his relation duly authorized to leave the headquarter and the earned leave was sanctioned in his favour vide Annexs. 1 and 2. On 21st June, 2005 while the petitioner was at Mumbai, he suffered heart attack and therefore, he was taken to Bombay Hospital and Research Center, Mumbai, the nearest hospital from the place where the petitioner was staying at Mumbai. According to the petitioner, his condition was very precarious and, therefore, he was admitted to the said hospital as emergency case and was advised Coronary Artery Angio Plasty with Stenting Operation immediately. The surgery was performed on 22nd June, 2005 vide Annex.3. The petitioner incurred total expenses for the treatment to the tune of Rs.1,63,803/- and submitted bill to the respondents for reimbursement vide Annexs. 4 and 5. However, the respondent limited the medical claim of the petitioner to the extent of Rs.75,000/- on the basis that the cost of such treatment had the petitioner undergone the treatment at SMS Hospital, Jaipur would be Rs.75,000/- on the basis of order Anex.R/1 by which Dr. R.K. Madhok, the Principal and Head of the Department of the Cardiology Department, SMS Hospital, Jaipur who certified that for such treatment, had the treatment SBCWP No.4878/07 Jai Prakash Vs. RSRTC & Ors. -{3}- been taken in SMS Hospital, the expenditure would have been Rs.75,000/-. Accordingly, a sum of Rs.75,000/- was paid to the petitioner as against his total claim of Rs.1,63,803/-, hence, this writ petition. I have heard learned counsel for the parties. It is contended by learned counsel for the petitioner that in an emergent situation while the petitioner was at Mumbai suddenly suffered heart attack and, therefore, under compelling circumstances in a precarious condition, he was taken to the nearest hospital i.e., Bombay Hospital and Research Center, Mumbai and was treated and, therefore, the petitioner claim cannot be limited to that of the cost had the treatment been taken at SMS Hospital, Jaipur. Learned counsel for the respondent submitted that the respondent RSRTC has adopted the Rajasthan Civil Services (Medical Attendance) Rules, 1970 (for short the Rules of 1970) and as per Rule 7 of the Rules of 1970, the petitioner is entitled for the reimbursement of medical claim to the extent of the expenses incurable for such treatment in SMS Hospital, Jaipur. According to learned counsel for the respondent the treatment of Angio Plasty with Stenting operation is available in the State of Rajasthan more particularly, in the SMS Hospital, Jaipur and, SBCWP No.4878/07 Jai Prakash Vs. RSRTC & Ors. -{4}- therefore, as per the Rule 7 of the Rules of 1970,the amount reimbursable is Rs.75,000/- and same has rightly been paid to the petitioner. Rule 7(1) of the Rules of 1970 provides that 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 recognized 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 Authorized 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. Sub-Rule (2) of Rule 7 of the Rules of 1970 provides the items reimbursable. Rule 3 of the Rules of 1970 provides as under : - “3. Free Medical Attendance and Treatment to Government Servants -(1) A Government servant shall be be entitled to medical attendance and treatment free of charge in accordance with SBCWP No.4878/07 Jai Prakash Vs. RSRTC & Ors. -{5}- provisions of these rules. (2) (i) The expenses incurred by a Government servant on account of medical attendance and treatment shall on production of essentiality certificate from the athorised medical attendant in the prescribed form, be reimburtsed to him to the extent and in manner provided in these rules. (ii) The following charges paid by the Government servants for treatment are reimbursable- (a) Cost (including sales tax paid by the Government Servants on medicines purchased) of allopathic drugs, medicines, vaccines, sera or other therapeutic substances not ordinarily available in Government Hospitals. List of allopathic drugs, medicines which are not reimbursable is given in Appendix II. (b) Cost (including Sales Tax paid by the Government servant on medicines purchased) of Ayurvedic and Unani drugs of approved preparation only not ordinarily available in Government Hospital. List of durgs which are reimbursable is given in Appendix IV. (c) Ambulance charges incurred to convey the patient from Government hospital to another for treatment or examination, if the ambulance belongs to Government or the Government hospital, where patient is admitted. (d) Blood transfusion charges. (e) Cost wholly or partly of hearing aid or artificial limb (including cost of replacing a limb) or callipers. SBCWP No.4878/07 Jai Prakash Vs. RSRTC & Ors. -{6}- If a hearing aid equipment is required to be purchased again on the opinion of the competent authorized medical attendance and that the earlier equipment is beyond repairs, the reimbursement of cost would be limited to 50% only. (f) Consultation fee charges by the authorized medical attendant from the Government servant for treatment of Government servant at his residence to the extent and on scale laid down in the Schedule given in Appendix 'X' of Rajasthan Service Rules, Vol.II. (g) Fee paid of Compounder/Nurse per visit for administering injection at the residence of Government servant to the extent and on the scale laid down in the schedule given in Appendix 'X' of Rajasthan Service Rules, Volumn II. (h) X-Ray charges paid by the Government Servant in a Government Hospital/Dispensary/Clinic. (i) Cost (including Sales Tax paid by the Government servant on medicines purchased) of Homeopathic drugs of approved preparation only, not ordinarily available in the Government Hospitals. List of Pharmacists as well as list of medicines which are reimbursable is given in Appendix 12. (j) Consultation fee charges by the authorized medical attendant and fee paid to Compounder/Nurse for administering injections in case of Homeopathic treatment at the residence of the Government servant will not be reimbursable. (k) The charges paid by the Government servants SBCWP No.4878/07 Jai Prakash Vs. RSRTC & Ors. -{7}- in a Government Hospital under Auto Finance Scheme for pathological, bacteriological and radiological test, X-ray, Dislysis and investigations etc. which are considered necessary by the authorized medical attendant. (i) Actual cost of Intra-Ocular Lens implantation and the treatment thereto, if undertaken in Government hospital. (m) Cost of Subscutaneous Infusion Pump – an instrument for use of blood transfusion. (n) The charges paid by the Government Servants to the Rajasthan Medicare Relief Societies established in accordance with the Government instructions for pathological, bacteriological and radiological tests, X-Ray, Dialysis and investigations etc. which are considered necessary by the authorized medial attendant.” Thus, from the provisions referred hereinabove, a Government servant is entitled to medical attendance and treatment free of charge in accordance with the Rules of 1970, which provides reimbursement of the expenditure incurred by the Government servant on account of medical attendance and treatment to the Government servant or his family members to the extent and in the manner provided for in the Rules of 1970. Appendix 11 of Rule 7(3) provides for enlistment of SBCWP No.4878/07 Jai Prakash Vs. RSRTC & Ors. -{8}- Institutions/Hospitals which are approved by the State Government and the Bombay Hospital and Research Centre, Mumbai has been enlisted in the institution/hospital which have been approved by the State of Rajasthan and thus,there is no dispute that the petitioner undergone the treatment in a Government approved hospital. The controversy identical to that of controversy in the instant writ petition came to be considered by the Division Bench of this Court in the case of State of Rajasthan & Ors Vs. Surendra Kumar Kalra reported in 2008(2) WLC (Raj.) 430 wherein the Division Bench of this Court held that the petitioner therein is entitled to the reimbursement on the rates applicable in the Government recognized hospitals. In a recent judgment, the Hon'ble Supreme Court delivered in State of Karnataka & Anr. Vs. R. Vivekanand Swamy and State of Rajasthan & Ors Vs. Savitri Upadhyay reported in (2008) 5 SCC 328 observed as under : - “24. In view of the aforementioned settled principles of law there cannot be any doubt that the Rules regarding reimbursement of medical claim of an employee when he obtains treatment from a hospital of his choice can be made limited. Such Rules furthermore having been framed under the SBCWP No.4878/07 Jai Prakash Vs. RSRTC & Ors. -{9}- provisio of Article 309 of the Constitution of Indian constitute conditions of service in terms whereof on the one hand the employee would be granted the facility of medical aid free of cost from the recognized government hospitals and on the other hand, he at his option, may get himself treated from other recognized hospitals/institutions subject of course to the condition that the reimbursement by the State therefor would be limited.” Thus, the rules of 1970 deals with reimbursement of the medical claim of Government servant, which provides the reimbursement of mediclaim to the extent reimbursable when the Government servant obtains treatment from a Hospital of his choice limiting such reimbursement to the extend of expenses incurred in SMS Hospital, Jaipur or if the treatment is taken from approved/recognized Hospital outside State then to extent of expenses incurred for such treatment as AIIMS cannot be said to be against the provisions of law. Rules of 1970 are frame under the provisions of Article 309 of the Constitution of India constitute conditions of service in terms whereof on the one hand the employee would be granted the facility of medical aid free of cost from the recognized government hospitals and on the other hand, he at his option, may get himself treated from other recognized hospitals/institutions subject of course to the SBCWP No.4878/07 Jai Prakash Vs. RSRTC & Ors. -{10}- condition that the reimbursement by the State therefor would be limited. The Rule 7 of the Rules of 1970 limits the reimbursement in a situation where Government servant takes the treatment outside the State though such treatment is available in the State. Even Rule 7 provides that 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 recognized by the Government. Since in the instant case,the petitioner has taken his treatment from a approved hospital outside the State under compelling circumstances, which necessitated the petitioner while on leave at Mumbai and suddenly suffered heart attack and he was taken to nearest hospital i.e., Bombay Hospital and Research Center, Mumbai in a precarious condition and it was not possible for the petitioner to have taken treatment at SMS Hospital, Jaipur within the State of Rajasthan or at AIIMS and by force he was to take treatment outside the State and, therefore, in my opinion, the petitioner is entitled for reimbursement of his medical claim to the extent payable had the treatment been SBCWP No.4878/07 Jai Prakash Vs. RSRTC & Ors. -{11}- taken from AIIMS. In this view of the matter, the petitioner is entitled for reimbursement at the rate applicable in AIIMS for the treatment which the petitioner has taken. The petitioner has already been paid a sum of Rs.75,000/- and the difference of the charges of the treatment between the AIIMS and SMS Hospital if any, may be paid to the petitioner within a period of three months from today. With this modification, the writ petition stands disposed of. No order as to costs. (H.R. PANWAR), J. cpgoyal/-