Full Judgment Text
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CASE NO.:
Appeal (civil) 2336 of 2008
PETITIONER:
State of Karnataka and another
RESPONDENT:
Sri R. Vivekananda Swamy
DATE OF JUDGMENT: 01/04/2008
BENCH:
S.B. SINHA & V.S. SIRPURKAR
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 2336 OF 2008
(Arising out of SLP (C) No. 2593 of 2006)
WITH
CIVIL APPEAL NO. 2335 OF 2006
(Arising out of SLP (C) No. 1387 of 2006)
State of Rajasthan and others \005 Appellants
Versus
Smt. Savitri Upadhyay \005 Respondent
S.B. SINHA, J.
1. Leave granted in both the matters.
2. Interpretation and/or application of Medical Benefit Rules applicable
in the State of Karnataka as also in the State of Rajasthan is in question
before us in these appeals which arise out of the judgment and order dated
20th June, 2005 passed by a Division Bench of the Karnataka High Court in
Writ Petition No. 10942 of 2005 and that of the judgment and order dated 4th
August, 2005 passed by a Division Bench of the High Court of Rajasthan,
Jaipur Bench, Jaipur in D.B. Civil Writ Petition No.6502 of 2004
respectively.
3. Respondent in the Karnataka case is an officer working in the Office
of the Department of Commercial Taxes. He underwent ’Coronary Artery’
Bypass Surgery in the Wockhardt Hospital and Heart Institute having been
admitted on 19th June, 2000. A sum of Rs.1,50,600/- was said to have been
incurred by him by way of medical expenses. He claimed re-imbursement
thereof. The State of Karnataka sanctioned and reimbursed a sum of
Rs.39,207/-. Feeling aggrieved, a writ petition was filed which, by reason of
the impugned judgment, has been allowed.
4. Rajasthan case, relates to one Ajay Upadhyay, who was a Judicial
officer. He had been suffering from some kidney problems. Respondent
herein is his mother. Ajay Upadhyay was being treated for renal failure in
1997. He was referred to AIIMS for kidney transplantation by the SMS
Medical College and Hospital, Jaipur. However, as AIIMS showed its
inability to admit him because of non-availability of bed. Transplantation of
kidney was carried out in Batra Hospital, Delhi, in 1997. Respondent, who
was also an employee of the State claimed reimbursement of the said
medical expenses. However, a sum of Rs.50,000/- was allegedly found
admissible for the purpose of reimbursement out of the total claim of a sum
of Rs.2.11 lacs. Respondent, however, claimed that the entire sum may be
reimbursed. Other medical expenses incurred by Ajay Upadhyay, as follow
up measures, have been reimbursed to the respondent herein.
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Ajay Upadhyay joined Rajasthan Judicial Service in the year 2000. In
February, 2003 he got himself treated in Batra Hospital. Allegedly his case
was not referred therefor by the SMS Medical College and Hospital, Jaipur.
As he was not treated by AIIMS, he filed a writ petition in the High
Court of Delhi for a direction to admit him therein. However, because of an
emergent situation, he got himself admitted in the Batra Hospital. The said
writ petition was withdrawn.
In the month of May, 2003 he again came to Delhi and got himself
admitted and treated in Batra Hospital. He filed a representation before the
Registrar General of the High Court of Rajasthan that on account of the
sudden demise of his maternal uncle, he had to go to Delhi and as he fell ill
there, went straightaway to Batra Hospital. He, therefore, prayed for
reimbursement of his medical expenses incurred on that occasion also.
Indisputably, however, the Principal and Controller, SMS Medical
College and Hospital, on or about 5th July, 2003, referred him to AIIMS.
Allegedly in the reference order it was mentioned that the same was subject
to medical expenses with a ceiling of Rs.10,000/- only. Ajay Upadhyay
obtained treatment in the Batra Hospital from 4th July to 29th July, 2003. He
unfortunately breathed his last on 7th November, 2003. Respondent claimed
medical reimbursement to the tune of Rs.6,52,148/- with interest. Only a
sum of Rs.75,000/- was, however, sanctioned by the State of Rajasthan as
being admissible, purported to be in terms of the Rules.
5. Feeling aggrieved, a writ petition was filed in the High Court of
Rajasthan which by reason of the impugned judgment and order has been
allowed directing :-
" As a result of the aforesaid discussion the writ
petition succeeds and same is allowed. The respondents
are directed to release the amount of Rs.6,52,148/- in
favour of the Petitioner of the medical expenses bills of
Batra Hospital, New Delhi, where his son late Shri Ajay
Upadhyay, an officer of the Rajasthan Judicial Service
was treated, within a period of two months from the date
of receipt of the copy of this order. The respondents are
further directed to pay to the petitioner on the aforesaid
amount the interest at the rate of 6% per annum from the
date of submission of the first medical bill for
reimbursement of the amount of Batra Hospital, New
Delhi, till the payment thereof is made."
6. Before embarking on the contentions raised by learned counsel in
these appeals, we may notice the relevant Rules framed by the States of
Karnataka and Rajasthan.
7. The State of Karnataka in exercise of its power conferred upon it by
the proviso to Article 309 of the Constitution of India and in supersession of
the Karnataka Government Servants’ (Medical Attendance) Rules, 1957
framed the Karnataka Government Servants’ (Medical Attendance) Rules,
1963 (for short the 1963 Rules).
Rule 2 of the 1963 Rules provides that the same shall apply mutatis
mutandis to the family of a Government servant as would apply to the
Government servant himself. The explanations appended thereto reads :-
"2. Application. \026
Explanation .- I. For the purposes of these rules,
"family" means.-
(i) the wife or husband ;
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(ii) the father and mother including step-mother; and
(iii) children including adopted children and step-
children, of a Government servant who are wholly
dependent on such Government servant.
Explanation II. \026 For the purpose of this sub-rule,. The
father and mother including step-mother shall be
regarded as wholly dependent on the Government servant
if they ordinarily reside with him and their total monthly
income does not exceed two thousand rupees."
"Authorised hospitals" and "medical institutions" have been defined
in Rule 3(aa) to mean the hospitals and medical institutions specified in
Schedule I. Rule 7 entitles a Government servant to receive free medical
treatment in such Government Hospitals at or near the place where he falls
ill, as can, in the opinion of the authorized medical attendant, provide the
necessary and suitable treatment. "Authorised medical attendant" has been
defined in Section 3(a) to mean a medical officer who is a Gazetted
Government servant working in a Government hospital or Government
Medical institution and various other authorities as specified therein. Rule
8(1), although is not relevant for our purposes, may be noticed which is in
the following terms :-
"8. Admission to and treatment in wards. \026 (1) the
patients who under these rules, are eligible for treatment
in a particular class of paying or special ward, may get
themselves treated in any higher class of ward, by paying
the difference in the rates for the two classes of wards."
Proviso appended to sub-rule (3) of Rule 8, which was introduced by
reason of the Notification dated 22nd January, 2001, reads thus :-
" Provided that notwithstanding anything contained
in these rules the Government Servant and his family
shall be eligible for treatment in the wards of the
authorized hospitals and medical institutions specified in
Schedule I as per the rates specified in the Table below.-
Range of Pay
Category of Ward /
Class of
accommodations to
which entitled
Maximum ward
charges / room rent
to which entitled
(1)
(2)
(3)
(i)
Upto Rs.4,350
per month
General Ward
Rs.100/- per day
(ii)
Rs.4,351 to
Rs.11,840 per
month,
Semi-Private Ward
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Rs.200/- per day
(iii)
Rs.11,841 and
above
Private Ward
Rs.500/- per day
Rule 14 specifies as to how and in what manner, the reimbursement of
medical expenses is to be carried out.
Rule 15 provides for claims for reimbursement of medical charges.
Rule 31 empowers the Government to relax the provisions of the said Rules.
8. The judgment of the Tribunal, which was affirmed by the High Court,
was based on the premise that persons similarly situated who had taken
treatment from Wockhardt Hospital and Heart Institute had been given the
benefit of the reimbursement of the medical bills, although the respondent
was denied of the said benefit.
9. The Government of Rajasthan also in exercise of its powers conferred
upon it by the proviso to Article 309 of the Constitution of India made Rules
known as Rajasthan Civil Services (Medical Attendance) Rules, 1970 (in
short the 1970 Rules).
Rule 2 provides for the extent of application of the said Rules which
includes all government servants. Rule 3(1) defines "Authorised Medical
Attendant" "Authorised medical attendant" has been defined in Section
3(a) to mean a Medical Officer of the Rajasthan Medical Department on
duty in a hospital or dispensary and various other authorities as specified
therein.
"6. Medical attendance and treatment outside
Rajasthan.- (1) A Government servants 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.
(2) For the purpose of this rule "Authorised Medical
Attendant" in respect of a Government servant or class of
Government servant at a station outside Rajasthan shall
mean an officer of Medical Department of Central or
other State Government (as the case may be) on duty in a
Government hospital or Dispensary at that station.
(3) The charges paid by the Government Servant
posted at Delhi to the following private hospitals/clinics
for X-Ray, Pathological, Baceterilogical, Radiological
tests and other kind of investigations which are
considered necessary by the doctor of the State
Government posted in Delhi, shall be re-imbursed:-
1. Sunderlal Jain Charitable Hospital, Ashok Vihar.
2. Massonic Charitable Polyclinic, Janpath, and
3. Sir Gangaram Hospital, Rajendra Nagar.
7. Treatment of a disease for which treatment is not
available in the State. \026 (1) A Government servant and
the members of his family suffering from a disease for
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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 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 Sate.
(2) The following charges/expenses shall be
reimbursable:-
(a) Cost (including Sales Tax) of Allopathic Drugs,
Medicines, Vaccines, Sera or other therapeutic
substances reimbursable under these rules.
(b) Sums actually paid to the Hospital/Institution on
account of medical attendance and treatment
including charges for surgical operations and
ordinary nursing facility.
(c) Travelling allowance for journey by rail/road from
duty point at the station at which the patient falls
ill to the place of treatment outside the State and
back to a single fare of the class to which his
classification entitles him under Rajasthan
Travelling Allowance Rules. Such traveling
allowance shall also be admissible for an attendant,
if the Authorised Medical Attendant certifies in
writing that it is unsafe for the patient to travel
unattended and that an attendant is necessary to
accompany the patient to the place of treatment
and back.
(3) The facility of medical attendance and treatment in
the type of cases mentioned in sub-rule (1) can be had at
any of Hospitals/Institutions mentioned in Appendix 11.
(4) For the purpose of reimbursement, the original
receipts issued by such Hospital/Institutions and
vouchers of medicines etc. shall be countersigned by the
Authorised Medical Attendant of Government Hospital
on whose advice the treatment outside the State was
undertaken."
It does not appear that 1970 Rules provide for any power of
relaxation.
10. Mr. Hegde, learned counsel appearing on behalf of the State of
Karnataka and Mr. Aruneshwar Gupta, the learned Additional Advocate
General, appearing on behalf of the State of Rajasthan submitted that having
regard to the Rules framed by the States, the validity whereof is not being in
question and in fact having been upheld by this Court, the High Courts of
Karnataka and Rajasthan committed serious errors in issuing the impugned
directions.
11. Mr. Bhat, learned counsel appearing on behalf of the respondent in
Karnataka case, would, on the other hand, submit that the power of
relaxation should have been exercised by the appropriate authority
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judiciously and in a case of this nature, Article 14 of the Constitution of
India is attracted. It was urged that as a large number of non Government
Hospitals are now included in the list of hospitals, the impugned judgment
should not be interfered with.
12. Ms. Shoba, learned counsel appearing on behalf of the respondent in
Rajasthan case took us to the entire factual aspect of the matter and
submitted that the High Court judgment is unexceptionable, keeping in view
the fact that whatever is required to be paid is reimbursement of the bills for
the month of May-June, 2003, although the State has reimbursed the bills for
medical expenses for February, 2003, July, 2003 and also October, 2003. It
was urged that as even in relation to the reimbursement of the medical bills
for the year 1997, the State has favourably responded, the High Court cannot
be said to have committed any error in issuing the impugned directions,
particularly when correctness of the bills was verified and recommended by
the High Court.
13. Law operating in this field, as is propounded by Courts from time to
time and relevant for our purpose, may now be taken note of.
14. In Surjit Singh vs. State of Punjab and others : (1996) 2 SCC 336
this Court in a case where the appellant therein while in England fell ill and
being a case of emergency case was admitted in Dudley Road Hospital,
Birmingham. After proper medical diagnosis he was suggested treatment at
a named alternate place. He was admitted and undergone bypass surgery in
Humana Hospital, Wellington, London. He claimed reimbursement for the
amount spent by him. In the peculiar facts of that case it was held :-
"11. It is otherwise important to bear in mind that self
preservation of one’s life is the necessary concomitant of
the right to life enshrined in Article 21 of the
Constitution of India, fundamental in nature, sacred,
precious and inviolable. The importance and validity of
the duty and right to self-preservation has a species in the
right of self defence in criminal law. Centuries ago
thinkers of this Great Land conceived of such right and
recognised it. Attention can usefully be drawn to verses
17, 18, 20 and 22 in Chapter 16 of the Garuda Purana (A
Dialogue suggested between the Divine and Garuda, the
bird) in the words of the Divine :
17. Vinaa dehena kasyaapi canpurushaartho na vidyate
Tasmaaddeham dhanam rakshetpunyakarmaani
saadhayet
Without the body how can one obtain the objects of
human life? Therefore protecting the body which is the
wealth, one should perform the deeds of merit.
18. Rakshayetsarvadaatmaanamaatmaa sarvasya
bhaajanam Rakshane yatnamaatishthejje
vanbhaadraani pashyati
One should protect his body which is responsible for
every thing. He who protects himself by all efforts, will
see many auspicious occasions in life.
20. Sharirarakshanopaayaah kriyante sarvadaa
budhaih Necchanti cha punastyaagamapi
kushthaadiroginah
The wise always undertake the protective measures for
the body. Even the persons suffering from leprosy and
other diseases do not wish to get rid of
the body.
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22. Aatmaiva yadi naatmaanamahitebhyo nivaarayet
Konsyo hitakarastasmaadaatmaanam taarayishyati
If one does not prevent what is unpleasent to himself,
who else will do it? Therefore one should do what is
good to himself."
We may, however, notice that in that case, before this Court, Rules
framed under the proviso to Article 309 of the Constitution of India, were
not in force. What were in force were the Policies regarding reimbursement
of medical expenses framed by the State of Punjab on 25th January, 1991 and
8th October, 1991.
15. This Court, however, considered the validity of a rule in regard to
reimbursement of the medical expenses viz-a-viz the fundamental right of a
citizen in terms of new policy evolved by the State of Punjab limiting claim
for reimbursement in State of Punjab and others vs. Ram Lubhaya Bagga
and others : (1998) 4 SCC 117, opining :-
"23. When we speak about a right, it corelates to a duty
upon another, individual, employer, Government or
authority. In other words, the right of one is an obligation
of another. Hence the right of a citizen to live under
Article 21 casts obligation on the State. This obligation is
further reinforced under Article 47, it is for the State to
secure health to its citizen as its primary duty. No doubt
Government is rendering this obligation by opening
Government hospitals and health centers, but in order to
make it meaningful, it has to be within the reach of its
people, as far as possible, to reduce the queue of waiting
lists, and it has to provide all facilities for which an
employee looks for at another hospital. Its up-keep;
maintenance and cleanliness has to be beyond aspersion.
To employ the best of talents and tone up its
administration to give effective contribution. Also bring
in awareness in welfare of hospital staff for their
dedicated service, give them periodical, medico-ethical
and service oriented training, not only at the entry point
but also during the whole tenure of their service. Since it
is one of the most sacrosanct and valuable rights of a
citizen and equally sacrosanct sacred obligation of the
State, every citizen of this welfare State looks towards
the State for it to perform its this obligation with top
priority including by way of allocation of sufficient
funds. This in turn will not only secure the right of its
citizen to the best of their satisfaction but in turn will
benefit the State in achieving its social, political and
economical goal. For every return there has to be
investment. Investment needs resources and finances. So
even to protect this sacrosanct right finances are an
inherent requirement. Harnessing such resources needs
top priority."
However, having regard to the fact that the medical facilities
continued to be given and an employee was given free choice to get
treatment from any private hospital in India but the amount of payment for
reimbursement was regulated, it was opined :-
"29. No State or any country can have unlimited
resources to spend on any of its project. That is why it
only approves its projects to the extent it is feasible. The
same holds good for providing medical facilities to its
citizen including its employees. Provision of facilities
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cannot be unlimited. It has to be to the extent finance
permit. If no scale or rate is fixed then in case private
clinics or hospitals increase their rate to exorbitant scales,
the State would be bound to reimburse the same. Hence
we come to the conclusion that principle of fixation of
rate and scale under this new policy is justified and
cannot be held to be violative of Article 21 or Article 47
of the Constitution of India."
16. The said principle was reiterated in State of State of Punjab and others
vs. Mohan Lal Jindal : (2001) 9 SCC 217.
17. The question came up for consideration before this Court in
Confederation of Ex-Servicemen Association and others vs. Union of India
and others : (2006) 8 SCC 399 wherein a Constitution Bench of this Court
had the occasion to notice Ram Lubhaya Bagga (supra). Agreeing therewith
it was opined :-
" In our considered opinion through the right to
medical aid is a fundamental right of all citizens
including ex-servicemen guaranteed by Article 21 of the
Constitution, framing of scheme for ex-servicemen and
asking them to pay "one time contribution" neither
violates Part III nor is it inconsistent with Part IV of the
Constitution. Ex-servicemen who are getting pension
have been asked to become members of ECHS by
making "one time contribution" of reasonable amount
(ranging from Rs.1800 to Rs.18,000/-. To us, this cannot
be held illegal, unlawful, arbitrary or otherwise
unreasonable."
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 he, at his option, may get himself treated from other
recognized hospitals/institutions subject of course to the conditions that the
reimbursement by the State therefor would be limited.
19. In the Karnataka case, however, it is necessary to take into
consideration the provisions of Rule 31 of 1963 Rules which confers an
unequivocal power of relaxation to the authorised authorities specified
therein. A public authority may exercise its power of relaxation only where
there exists a provision therfor. [See - Kendriya Vidyalaya Sangathan and
Ors. vs. Sajal Kumar Roy and Ors : (2006) 8 SCC 671 Pitta Naveen
Kumar and others. vs. Raja Narasaiah Zangiti and others (2006) 10 SCC
261 ].
20. It, however, goes without saying that while exercising such a power,
the authority must act judiciously keeping in mind the purport and object
thereof. Considerations therefor, although may not partake a mathematical
exactable but should always be fair and reasonable. Although it may not be
possible for an employee to enforce a purported right on the premise that
another person had obtained reimbursement for a similar kind of treatment,
ordinarily fair procedure envisages a broad similarity. If any person has
been shown any undue favour, we may add, by itself may not be a ground to
favour another but when such a contention is raised, the State should be able
to demonstrate a fair treatment. It is possible to draw a distinction on the
basis of several factors, emergent situation being one of them. So viewed,
we do not find that the State of Karnataka had acted arbitrarily.
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21. Rajasthan case, however, involves some disputed questions of fact.
Aay Upadhyay was a Judicial Officer. Indisputably he was suffering from a
serious disease. The contention of the respondent to the effect that the
appellant herein herself being a government employee was able to obtain
reimbursement of the amount spent towards his treatment as far as back in
1977. We do not see any reason why he should not be reimbursed for the
later period. It is true that ordinarily a government employee may have to
get himself treated in AIIMS; it being a pioneer super-speciality institution,
but we cannot also shut our eyes to the fact that for one reason or the other,
Ajay Upadhyay could not be admitted in AIIMS. A writ petition was filed
in the Delhi High Court which, because of passage of time, although was
withdrawn but it is difficult for us to arrive at one conclusion or the other
only on the basis of the averments made by the parties to the writ petition
before the High Court; one of them being AIIMS itself. He developed
trouble even after joining judicial service. He admittedly was referred to
AIIMS. Whether such reference was made in February, 2003 or July, 2003
may be a matter of dispute. But if without any order of reference in
February, 2003 reimbursement of expenditure incurred in February, 2005
has been effected and similarly for July and October \026 November, 2003 the
respondent was reimbursed, we do not see any reason as to why
reimbursement of the medical expenses for the period May and June, 2003
would not be allowed.
22. The State might be fighting this case on principle. It may be correct
in its view. Applying the Rules strictly, respondent might not have been
entitled for reimbursement for the period subsequent to the date of reference
and not prior thereto. But as indicated hereinbefore there is is no reason to
ignore the statement made in para 2 of the additional affidavit filed on behalf
of the respondent, which is to the following effect :-
"2) That the State Govt. had allowed the full
reimbursment of medical bills of late Shri Ajay
Upadhyay incurred in Batra Hospital, New Delhi, for the
period of treatment in Batra Hospital, from 04.02.03 to
10.02.03 and from 04.11.03 to 07.11.03, and as such the
reimbursement of medical bills of late Shri Ajay
Upadhyay are still pending from 13.05.03 to 21.10.03
amounting to Rs.5,98,406.75 of Batra Hospital, New
Delhi."
23. What, however, is requited to be taken into consideration is the three
bills amounting to Rs,5,98,406.75 for the period 13.05.03 to 21.10.03.
24. There appears to be some discrepancies in regard to the said bills. We
are not concerned with the 1997 bills. Our attention has been drawn to the
following bills.
The first Bill was of Rs.42,197.00 for the period 04.03.03 to 10.02.03
As noticed hereinbefore the said bill has already been paid.
The second bill is for Rs.3,16,311.750 for the period 13.05.03 to
11.06.03. The said bill remains unpaid.
The third bill is for reimbursement of Rs.1,15,619.00 for the period
04.07.03 to 29.07.03.
The fourth bill does not appear to be on record. But from the
respondent’s letter dated 21st April, 2006 it appears that the same was for a
sum of Rs.31,544/- for the period 04.11.03 to 07.11.03 which has already
been paid.
25. The dispute, thus, centres round the aforementioned two bills
amounting to Rs.3,16.311.75 ps. and Rs.1,15,619.00.
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26. In a case of this nature, we are of the opinion, that having laid down
the law for the future that claim for reimbursement must be made only in
terms of the Rules and not dehors the same, and more so, when there is no
power of relaxation, in exercise of our jurisdiction under Article 142 of the
Constitution of India, we direct the States of Karnataka and Rajasthan to pay
the balance amounts. However, this order shall not be treated as a
precedent.
We may, however, state that the reason for such a direction is that so
far as the State of Karnataka is concerned, it has enlisted a large number of
hospitals as approved medical institutions enabling its employees to obtain
treatment therefrom.
27. So far as the Rajasthan case is concerned unlike the State of
Karnataka there is no provision for exemption for payment of portion of the
amount of bill which would be corresponding to the costs which would have
been otherwise incurred by the employee in obtaining treatment from
AIIMS. It is furthermore evident that ex-post facto sanction had been
granted. The State did not disclose the basis for such grant. The grant was
not dehors the Rules. Ajay Upadhyay indisputably obtained treatment at
Batra Hospital from time to time. He being a judicial officer, the bills
submitted by him had been verified by the Registrar of the High Court.
Recommendations had also been made by the High Court for reimbursement
of the said bills.
28. We, therefore, are of the opinion that in order to do complete justice
to the parties, we pass the order as proposed hereinbefore and direct the
States of Karnataka and Rajasthan to pay the balance amounts to the
respondent.
29. The appeals are disposed of with the above directions. In the facts
and circumstances of the cases there shall be no order as to costs.