Supreme Court of India
STATE OF KARNATAKA AND ANR.versusSRI R. VIVEKANANDA SWAMY
- Citation
- 2008 INSC 436
- Decided
- 1 April 2008
- Disposal
- Disposed off
- Bench
- S B SINHA
Holding
Claims for medical reimbursement must be made strictly in accordance with the applicable service Rules, and where no power of relaxation exists, the State must pay the balance amounts, though the order is not to be treated as precedent.
Summary
The Supreme Court heard two appeals concerning claims for reimbursement of medical expenses incurred by government employees in non‑government hospitals. In Karnataka, an officer who underwent coronary bypass surgery claimed Rs 1,50,600 but was reimbursed only Rs 39,207; the High Court had allowed his writ petition. In Rajasthan, the mother of a judicial officer who died after kidney transplantation sought full reimbursement of bills totalling over Rs 6.5 lakh, of which only Rs 75,000 had been paid; the High Court also allowed her petition. The Court examined the Karnataka Government Servants’ (Medical Attendance) Rules, 1963 and the Rajasthan Civil Services (Medical Attendance) Rules, 1970, focusing on whether the Rules permitted a power of relaxation and whether claims must be made strictly within the Rules. It held that where no power of relaxation is provided, reimbursement must be claimed strictly according to the Rules, and directed the States to pay the balance amounts, while noting that the order would not serve as precedent. The appeals were disposed of with directions to pay the outstanding sums and no order as to costs.
Issues considered
- The scope and interpretation of the Karnataka Government Servants' (Medical Attendance) Rules, 1963 and the Rajasthan Civil Services (Medical Attendance) Rules, 1970 regarding reimbursement for treatment in non‑government hospitals.
- Whether the authorities have a statutory power of relaxation under the Rules to exceed the prescribed limits.
- Whether the claim for reimbursement must be made strictly in terms of the Rules and not de hors them.
- Whether the States are obligated, under Articles 14, 309 (proviso) and 142 of the Constitution, to pay the balance amounts claimed by the petitioners.
Legislation cited
- Constitution of Indias. Article 14, s. Article 142, s. Article 21, s. Article 309, s. Article 47
Subjects
medical reimbursementservice rulesArticle 309Article 14non‑government hospitalrelaxation powerArticle 142KarnatakaRajasthancivil servicemedical attendance
Judgment
[2008] 5 S.C.R. 905
STATE OF KARNATAKA AND ANR. A
v.
SRI R. VIVEKANANDA SWAMY
(Civil Appeal No. 2336 of 2008)
APRIL 1, 2008
B
[S.B. SINHA AND V.S. SIRPURKAR, JJ.]
:J
r
I Service Law:
~
Conditions of Service - Medical Benefit Rules, applicable
in the States of Karnataka and Rajasthan - Interpretation and! c
or application of - Treatment in non-Government hospital -
Re-imbursement of medical expenses - Entitlement for -
Held: Claim for reimbursement must be made only in terms
of the Rules and not de hors the same, moreso, when no power
of relaxation conferred on the authorities - On facts, the State D
Government sanctioned and reimbursed a part of the medical
claim - To do complete justice, Supreme Court, in exercise
of its jurisdiction under Art. 142 of Constitution, directed State
Government to pay balance amount - However, this order not
to be treated as a precedent- Kamataka Government Servants' E
(Medical Attendance) Rules, 1963 - Rajasthan Civil Services
(Medical Attendance) Rules, 1970 - Constitution of India,
1950 - Arts. 142 & 309, proviso.
Interpretation and/or application of the Medical
Benefit Rules applicable in the States of Karnataka and F
Rajasthan, i.e. the Karnataka Government Servants'
(Medical Attendance) Rules, 1963 and the Rajasthan Civil
Services (Medical Attendance) Rules, 1970 was in
question in the present two appeals.
G
Respondent in the Karnataka case i.e. Respondent
No.1 is an officer working in the Office of the Department
of Commercial Taxes. He underwent 'Coronary Artery'
Bypass Surgery in Wockhardt Hospital and Heart
905 H
906 SUPREME COURT REPORTS [2008] 5 S.C.R.
A Institute, a non-Government hospital and purportedly
incurred a sum of Rs.1,50,600/- by way of medical
·expenses. He claimed re-imbursement thereof, but the
St;:ite of Karnataka sanctioned and reimbursed only a sum
of Rs.39,207/-. Feeling aggrieved, Respondent No.1 filed
s writ petition which was allowed by the Karnataka High
Court.
The Rajasthan case relates to 'A', the son of
Respondent No.2. In 1997, 'A' was referred to AllMS for
kidney transplantation by the SMS Medical College and
C Hospital, Jaipur. However, as AllMS showed its inability
to admit him because of non-availability of bed,
transplantation of his kidney was carried out in Batra
Hospital, Delhi, a non-Government hospital. Respondent
No.2, also an employee of the State, received partial
D reimbursement of the medical expenses incurred on that
occass1on. Subsequently 'A' joined the Rajasthan Judicial
Service in the year 2000 and in February, 2003, got himself
treated in Batra Hospital, though his case was allegedly
not referred by the SMS Medical College and Hospital,
E Jaipur. In May, 2003, he again got himself treated in Batra
Hospital, Delhi. On 5th July, 2003, SMS Medical College
and Hospital referred him to AllMS, allegedly subject to a
ceiling on medical expenses. 'A' obtained treatment in the
Batra Hospital from 4th July to 29th July, 2003. He died
F on 7th November, 2003. Respondent No.2 claimed medical
reimbursement to the tune of Rs.6,52,148/- with interest,
but only a sum of Rs.75,000/-was sanctioned by the State
of Rajasthan as being admissible in terms of the Rules.
Feeling aggrieved, she filed writ petition which was
G allowed by the High Court of Rajasthan.
Before this Court, the States of Karnataka and
Rajasthan contended that having regard to the Rules
framed by the States, the High Courts of Karnataka and
Rajasthan committed serious errors in issuing the
H impugned directions.
STATE OF KARNATAKA AND ANR. v. SRI R. 907
VIVEKANANDA SWAMY
\ Respondent No.1, on the other hand, submitted that A
the power of relaxation should have been exercised by
the appropriate authority judiciously and in a case of this
nature, Article 14 of the Constitution is attracted. It was
urged that as a large number of non-Government
Hospitals are now included in the list of hospitals, the 8
· impugned judgment of the Karnataka High Court should
I· j not be interfered with.
Respondent No.2, by taking into account the entire
factual aspect of the matter, submitted that the judgment
of Rajasthan High Court was unexceptionable, keeping c
in view the fact that whatever was required to be paid was
reimbursement ofthe bills for the month of May-June, 2003
and the State had already 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 D
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. E
Disposing of the appeals, the Court
HELD:1.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 F
rule furthermore having been framed under the proviso
to Article 309 of the Constitution 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
G
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. [Para 18] [922-D, E, F]
H
908 SUPREME COURT REPORTS [2008] 5 S.C.R.
A Surjit Singh v. State of Punjab and Ors. (1996) 2 SCC ;
336; State of Punjab and Ors. v. Ram Lubhaya Bagga and
Ors. (1998) 4 SCC 117; State of Punjab and Ors. v. Mohan
Lal Jindal (2001) 9 SCC 217 and Confederation of Ex-
Servicemen Association and Ors. v. Union of India and Ors.
B (2006) 8 sec 399 - referred to.
2. In the Karnataka case, however, it is necessary to \
take into consideration the provisions of Rule 31 of the
Karnataka Government Servants' (Medical Attendance)
Rules, 1963 which confers an unequivocal power of
c relaxation to the authorised authorities specified therein.
A public authority may exercise its power of relaxation
only where there exists a provision therefor. While
exercising such a power, the authority must act judiciously
keeping in mind the purport and object thereof.
D 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
,
E kind of treatment, ordinarily fair procedure envisages a
broad similarity. If any person has been shown any undue "
favour, that 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
F possible to draw a distinction on the basis of several
factors, emergent situation being one of them. So
viewed, the State of Karnataka had not acted arbitrarily. ...
[Paras 19, 20] [922-F, G; 923-A, B, C, D]
Kendriya Vidyalaya Sangathan and Ors. v. Sajal Kumar
G Roy and Ors. (2006) 8 SCC 671; Pitta Naveen Kumar and
Ors. v. Raja Narasaiah Zangiti and Ors. (2006) 10 SCC 261 -
relied on.
3. The Rajasthan case involves some disputed ...
questions of fact. 'A' was a Judicial Officer. He was
H
STATE OF KARNATAKA AND ANR. v. SRI R. 909
VIVEKANANDA SWAMY
suffering from a serious disease and was referred to A
AllMS. Whether such reference was made in February,
2003 or July, 2003 may be a matter of dispute. Applying
the Rules strictly, Respondent No.2 might not have been
entitled for reimbursement for the period subsequent to
the date of reference and not prior thereto. But if without B
any order of reference in February; 2003 reimbursement
of expenditure incurred in February, 2003 has been
effected and similarly for July and October- November,
2003 the respondent was reimbursed, there is no reason
why reimbursement of the medical expenses for the c
period May and June, 2003 would not be allowed.
[Paras 21, 22][923-D, E, G; 924-A, B, C]
4.1. However, in a case of this nature, having laid
down the law for the future that claim for reimbursement
must be made only in terms of the Rules and not de hors D
the same, and moreso, when there is no power of
relaxation, in exercise of its jurisdiction under Article 142
of the Constitution, this Court directs the States of
Karnataka and Rajasthan to pay the balance amounts.
However, this order shall not be treated as a precedent. E
[Para 26] [925-C, D]
4.2. 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. So F
far as the Rajasthan case is concerned unUke the State of
Karnataka there is no provision for exemption for payment
of portion of ~he amount of bill· which would be
corresponding to the costs which would have been
otherwise incurred by the employee in obtaining G
treatment from AllMS. 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 de
hors the Rules. 'A' obtained treatment at Batra Hospital
from time to time. He being a judicial officer, the bills H
910 SUPREME COURT REPORTS [2008] 5 S.C.R.
A 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.
[Paras 26, 27] [925-D, E, F, G; 926-A]
4.3. In order to do complete justice to the parties, the
B States of Karnataka and Rajasthan are directed to pay the
balance amounts to the concerned respondents.
[Para 28] [926-A, B]
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
c 2336 of 2008
From the final Judgment and Order dated 20.06.2005 of
the High Court of Karnataka at Bangalore in W.P. No. 10942 of
2005 (S-KAT)
WITH
D
Civil Appeal No. 2335 of 2008.
Aruneshwar Gupta, Addi. Adv. Genl., Sanjay R. Hegde,
Amit Kumar Chawla, Naveen Kumar Singh and Shashwat Gupta
E for the Appellants.
S.N. Bhat, Shobha, Harish Sharma, Rajinder Kumar
Panigrahi and Ajay Choudhary for the Respondent.
The Judgment of the Court was delivered by
F 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
G 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.
H
STATE OF KARNATAKA AND ANR. v. SRI R.
I
911
VIVEKANANDA SWAMY [S.B. SINHA, J.]
3. Respondent in the Karnataka case is an officer working . A
q\
in the Office of the Department of Comryiercial 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 s
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. Hajasthan case, relates to one Ajay Upadhyay, who was C
a Judicial officer. He had been suffering from some kidney
problems. Respondent herein is his mother.Ajay Upadhyaywas
being treated for renal_failure in 1997. He was referred to Al IMS
for kidney transplantation by the SMS Medical College and
Hospital, Jaipur. However, as Al IMS showed its inabilitY to admit D
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 E
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. F
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.
G
As he was not treated by AllMS, 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.
H
912 SUPREME COURT REPORTS [2008] 5 S.C.R.
A 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,
B 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,
c referred him to AllMS. 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.
D 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
E 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
F 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 ShriAjay 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
G
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."
H
STATE OF KARNATAKA AND ANR. v. SRI R. 913
VIVEKANANDA SWAMY [S.B. SINHA, J.]
6. Before embarking on the contentions raised by learned A
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 8
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 c
mutatis mutandis to the family of a Government servant as would
apply to the Government servant himself. The explanations
appended thereto reads :-
"2. Application. -
D
Explanation .- I. For the purposes of these rules, "family"
means.-
(i) the wife or husband ;
(ii) the father and mother including step-mother; and
E
(iii) children including adopted children and step-children,
of a Government servant who are wholly dependent
on such Government servant.
Explanation II. - For the purpose of this sub-rule,. The
father and mother including step-mother shall be regarded F
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 G
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 H
914 SUPREME COURT REPORTS [2008] 5 S.C.R.
A 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
B is not relevant for our purposes, may be noticed which is in the
following terms:-
"8. Admission to and treatment in wards. - (1) the patients
who. under these rules, are eligible for treatment in a
particular class of paying or special ward, may get
C 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 :-
0
"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
E as per the rates specified in the Table below.-
Range of Category of Ward I Maximum ward
Pay Class of charges I room
accommodations rent to which
to which entitled entitled
F
(1) (2) (3)
(i) Upto Rs.4,350 General Ward Rs.100/- per day
per month
G (ii) Rs.4,351 to Semi-Private Rs.200/- per day
Rs.11,840 Ward
per month
(iii) Rs.11,841 and Private Ward Rs.500/- per day
above
H
STATE OF KARNATAKAAND ANR. v. SRI R. 915
VIVEKANANDA SWAMY [S.B. SINHA, J.]
.Rule 14 specifies as to how and in what manner, the A
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.
B
) 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 c
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 D
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 E
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.- F
(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 G
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.
H
916 SUPREME COURT REPORTS [2008] 5 S.C.R.
A (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
B 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
c 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
D 3. Sir Gangaram Hospital, Rajendra Nagar.
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
E 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
F 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
G 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:-
H (a) Cost (including Sales Tax) of Allopathic Drugs,
STATE OF KARNATAKAAND ANR. v. SRI R. 917
VIVEKANANDA SWAMY [S.B. SINHA, J.]
Medicines, Vaccines, Sera or other therapeutic A
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
8
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 c
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 D
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, E
(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 F
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 G
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 H
918 SUPREME COURT REPORTS [2008] 5 S.C.R.
A 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
B
appropriate authority 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.
c
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
D 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
E 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
F 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
G 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
..!.
...•
H reimbursement for the amountspent by him. In the peculiar facts
STATE OF KARNATAKA AND ANR. v. .SRI R. 919
VIVEKANANDA SWAMY [S.B. SINHA, J.]
of that case it was held :- A
"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
8
) 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 C
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 D
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.
E
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 F
auspicious occasions in life.
20. Sharirarakshanopaayaah kriyante sarvadaa budhaih
Necchanti cha punastyaagamapi kushthaadiroginah
The wise always undertake the protective measures for G
the body. Even the persons suffering from leprosy and
other disease? do not wish to get rid of the body.
22. Aatmaiva yadi naatmaanamahitebhyo nivaarayet
Konsyo hitakarastasmaadaatmaanam taarayishyati H
920 SUPREME COURT REPORTS [2008] 5 S.C.R.
t
A 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
8
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 9th
October, 1991.
c 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 :
D (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
E 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
F 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
G 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
H
STATE OF KARNATAKA AND ANR. v. SRI R. 921
VIVEKANANDA SWAMY [S.B. SINHA, J.]
of their service. Since it is one of the most sacrosanct and A
~ t 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 B
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 c
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 D
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 E
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 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 F
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 G
India."
16. The said principle was reiterated in State of State of
Punjab and others vs. Mohan Lal Jindal: (2001) 9 SCC 217 .
.l.,
17. The question came up for consideration before this
H
922 SUPREME COURT REPORTS [2008] 5 S.C.R.
A 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
t .
notice Ram Lubhaya Bagga (supra). Agreeing therewith it was
opined :-
B
" 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 Ill nor is it
c 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
D 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
E 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
F 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
G 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 Vidya/aya Sangathan and Ors. vs. Sajal
H Kumar Roy and Ors : (2006) 8 SCC 671 Pitta Naveen Kumar
STATE OF KARNATAKA AND ANR. v. SRI R. 923
VIVEKANANDA SWAMY [S.B. SINHA, J.]
.+ and others. vs. Raja Narasaiah Zangiti and others (2006) 10 A
sec 261 J.
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
B
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 reimbwsement for a similar kind
of treatment, ordinarily fair procedure envisages a broad
similarity. If any person has been shown any undue favour, we
c
may add, by itself may not be a_ grourid 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 D
acted arbitrarily.
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 E
contention of the state is to the effect that the respondent here
in being a government employee was able to obtain
reimbursement of the amount spent towards the treatment as
far as back in 1997. We do not see any reason why he should
not be reimbursed for the later period. It is true that ordinarily a F
government employee may have to get himself treated in Al IMS;
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 Ai IMS. A writ petition was
filed in the Delhi High Court which, because of passage of time, G
although .waswithdrawn 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 AllMS itself. He developed trouble even after joining
judicial service. He admittedly was referred to AllMS. Whether
H
924 SUPREME COURT REPORTS [2008] 5 S.C.R.
A 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, 2003 has been effected and similarly for July and
October - November, 2003 the respondent was reimbursed,
B 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
c 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 :-
D
"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
E 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
F 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
G 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
H
STATE OF KARNATAKA AND ANR. v. SRI R. 925
VIVEKANANDA SWAMY [S.B. SINHA, J.]
+ 13.05.03 to 11.06.03. The said bill remains unpaid. A
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 21 51 April, 2006 it appears that B
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.
c
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 D
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, E
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 F
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 AllMS. It
is furthermore evident that ex-post facto sanction had been G
granted. The State did not disclose the basis for such grant.
The grant was not de hors 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 H
926 SUPREME COURT REPORTS [2008] 5 S.C.R.
A 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
8
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.
c B.B.B. Appeals disposed of
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