CWP 7230/07 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No. 7230/2007 Jawahar Lal Versus Chief Accounts Officers Panchayati Raj Department & Development Officer Panchayat Samiti Piprali (Sikar) Date of Order ::: 19/05/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Amit S. Shekhawat, for petitioner Mr. HV Nandwana, Govt. Advocate, for respondents. At joint request, matter is finally heard at admission stage. While working as Gram Sevak/Ex Officio Secretary in Panchayat Samiti, Piprali (Sikar), petitioner suffered with a severe head-ache in May, 2006 and initially consulted a local doctor at Sikar and after some preliminary diagnosis, doctor at Sikar advised him to consult an expert doctor at Jaipur. Ultimately, on 27/06/06, petitioner consulted Dr. NS Punia, Associate Professor, Neurosurgery (Unit-I) SMS Hospital, who advised for MRI Brain – on its medical test, petitioner was advised to undergo surgical operation forthwith as he was suffering from brain tumor. As alleged, since there was long queue at SMS Hospital for such surgical operation of patients and in view of emergent situation being brain tumor, petitioner was CWP 7230/07 //2// not able to take decision and being dependent upon family members at that point of time, they decided to get him surgically operated through DR. S.R.Dharkar in SK Soni Hospital Jaipur where he was admitted as indoor patient and got operated for brain tumor on 10/07/06 and after post operation care was discharged on 20/07/06 as is evident from discharge summary certificate (Schedule B) of SK Soni Hospital and for his medical treatment, he spent about Rs.1.30 lacs – medical bills whereof were furnished with respondent No.2 who forwarded the same vide letter dt.29/01/07 to respondent No.1 but was finally rejected vide order dt.20/06/07 (Ann.4) holding that since he got surgically operated at a hospital not duly recognised by Government, his bills are not reimburseable under Rajasthan Civil Services (Medical Attendance) Rules, 1970 (“Rules, 1970”). Counsel for petitioner submits that there was an emergency after undergoing his MRI brain test as he was diagnosis suffering from brain tumor, for which Dr.S.R.Dharkar is an eminent Specialist for such surgical operation attached to SK Soni Hospital, and there was long queue in SMS Hospital, his CWP 7230/07 //3// family members decided to get him admitted in SK Soni Hospital Jaipur where he got surgically operated of the brain tumor as is evident from discharge summary (Schedule B) incurring expenses as per medical bills submitted to respondents; as such in light of Rule 12 of Rules, 1970, his medical bills are required to be reimbursed in his favour and letter of rejection in the facts of the case deserves to be set aside. In their reply respondents raised preliminary objection that for claim of medical reimbursement, remedy is available to the petitioner under Rajasthan Civil Services (Services Matters Appellate Tribunals) Act, 1976 (“Act, 1976”). As regards merits, respondents inter-alia averred that for such treatments available in State Govt. hospitals, one is entitled to get medical bills reimbursed but for such treatments not available in Govt. Hospitals of the State, one can proceed for treatments outside State, after taking prior permission from competent authority U/r 7 of Rules, 1970 and as regards treatment undertaken by petitioner from SK Soni Hospital (private), Jaipur, Respondents averred that since such treatment at private CWP 7230/07 //4// Hospital, is not covered under scheme of Rules 1970, his medical bills are not reimbursable as per R.2(viii) of Rules, 1970 and thus his claim has rightly been rejected vide order impugned. I have considered contentions of both the parties and with their assistance, examined material on record. So far as preliminary objection that reimbursement of medical bills rejected vide order impugned can be raised by way of appeal before the Tribunal is concerned, since reply on merits about claim of petitioner for reimbursement of medical bills has been filed by respondents and matter has also been heard in detail, hence without expressing any opinion on the issue of availability of remedy of appeal on the premise of being covered under “service matters” as referred to in S.2(f) of the Act, 1976, is left open for consideration in other appropriate proceedings however, this Court considers it proper to decide the claim of petitioner for reimbursement of medical bills on merits. As regards facts brought on record, this could not have been controverted that petitioner certainly consulted in Dr.N.S. Poonia, Associate Prof., SMS Hospital, Jaipur on whose medical advise, petitioner underwent MRI brain test – on whose diagnosis, brain tumor was detected, for which he was advised to undergo emergent surgical operation and CWP 7230/07 //5// being in critical situation, he was not able to take decision and his family members being well-wishers took immediate decision to get him surgically operated at SK Soni Hospital, Jaipur through Dr.SR Dharkar on 10/07/06 and discharged on 20/07/06 as is evident from discharge summary (Schedule B). Apex Court in State of Rajasthan Vs. Smt. Savitri Upadhyay (Appeal (Civil) 2336/08 decided on 01/04/08) while examining similar controversy, observed ad infra: “18. 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 a rule furthermore having been framed under the proviso to Article 309 of the Constitution of India constitutes 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 opinion, may get himself treated from other recognised hospitals/ institutions subject ofcourse to the conditions that the reimbursement by the State therefor would be limited.” CWP 7230/07 //6// Division Bench of this Court has examined scheme of Rules, 1970 in State of Rajasthan Vs. Surednra Kumar Kalra (Special Appeal (Writ)-1276/06 decided on 17/01/08) wherein it has been observed that in an emergent situation, the Government cannot insist upon servant to get himself treated at Govt. recognised institution/hospital. In instant case, once petitioner has been put to diagnosis of suffering from brain tumor, for which surgical operation was immediately required and this fact cannot be ruled out that in such state of situation, patient always remained dependent upon his family members and is not decisive to take decision at that point of time, as family members being well wishers took decision, and admitted him in SK Soni Hospital, Jaipur to get him surgically operated through Specialist Dr. SR Dharkar. In view of material on record, emergent condition of petitioner cannot be doubted and in such circumstances, State Government ought to have exercised powers U/r 12 of Rules, 1970 by allowing claim of petitioner for reimbursement of his medical bills at the rates approved for Government recognised hospitals. In the opinion of this CWP 7230/07 //7// Court, by way of outright rejection of reimbursement of medical bills, respondents acted unreasonably and unfairly. It is always expected from the authority that while exercising such powers it must act judiciously keeping in mind purport and object with which medical facility has been made available to the serving Government employees. Considerations therefor should always be just, fair and reasonable. Consequently, writ petition succeeds and is hereby allowed. Rejection of claim of petitioner for reimbursement of medical bills in question vide order dt.20/06/07 (Ann.4) is hereby quashed & set aside. However, petitioner is held entitled for reimbursement of medical bills at the rates applicable in the Government recognised hospital. In case his medical bills exceed the rates of approved /recognised government institutions/hospitals, his claim shall be restricted to such rates and in case his medical bills are of less than the rates applicable to treatment of brain tumor at approved/recognised Govt. hospitals/ institutions, it goes without saying that petitioner should be reimbursed of his medical bills claimed. All exercise in compliance of this order, be completed within three months. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.7/7230CW07-1905.doc