JUDGMENT
Y.R. Meena, J.
1. By this writ petition the petitioner has prayed that respondents be directed to reimburse Rs. 1,34,400/- as this amount has been spent by the petitioner for by-pass surgery and replacement of heart valves, and the respondents be further directed to re-imburse Rs. 16,000/- against post operative periodical check up treatment at Escorts Hospital, New Delhi and travelling expenses.
2. The petitioner retired from the post of Commercial Taxes Officer from Commercial Taxes Department of Rajasthan in January, 1982. The petitioner was member of Rajasthan Commercial Taxes Service, after retirement he has granted pension according to Rajasthan Service Rules.
3. The petitioner fell sick on 11.3.91. He was first examined by Dr. S.K. Kaushik (Cardiologist), Govt. Hospital,’Udaipur. Dr. Kaushik advised the petitioner that he should undergo Echo Cardiography, Cardiac Cath L.V. and Coronary Angeography test. That facility was not available at Udaipur. A certificate was also issued to this effect by the concerned Doctor of Udaipur.
4. The petitioner came to Jaipur and got himself examined at SMS Hospital by Dr. Amrit Khalsa. Associate Professor & Consulting Cardiologist. The petitioner was advised by Dr. Khalsa to undergo Angiography and other specialised test. On 26.3.91 the petitioner has also consulted Dr. Ashok Jain for third opinion. He has also advised the petitioner to immediately consult specialist for Heart surgery.
5. The petitioner was examined on 2.4.91 at Escorts Heart Institute, Delhi. The petitioner was advised for admission and operation of heart.
6. The petitioner got himself admitted on 16.4.91 in Escorts Heart Institute and got operated for bypass surgery. The petitioner was discharged on 7.5.91. On 21.4.92 the petitioner submitted a representation to the Principal, RNT Medical College, Udaipur praying to re-imburse the medical expenditure incurred by him for heart surgery. The representation of the petitioner was forwarded to Medical Secretary. The member secretary returned the papers of the petitioners stating that bypass surgery expenditure cannot be reimburse as the petitioner got himself operated without the prior approval/reference of the Principal, Medical College, Udaipur.
7. Learned counsel for the petitioner Mr. Joshi has submitted that when the petitioner went Delhi and got himself examined at Escorts Heart Institute, he was advised for admission and operation of heart. He had no money, therefore, he. asked for time and ultimately he was admitted on 16.4.91 thereafter he got operated. Mr. Joshi submits that he was not in a position to move from Delhi, therefore, he could not get a certificate from the Principal of Medical College Jaipur/Udaipur. Therefore the expenses incurred by the petitioner for bypass surgery they be reimbursed, and he placed reliance on the decision 1996 (1) SLR 786.
8. The Sub-rule 1 of Rule 17 of the Rajasthan Civil Services (Medical Attendance) Rules, 1970 [hereinafter to be referred as Rules, 1970] reads as under-
(1) 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 recognised 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 State.
9. The aforesaid Sub-rule (1) of Rule 17 of the Rules, 1970 is clear that a Government servant and the members of his family if suffering from any disease for which treatment is not available in any Government Hospital in the State, the patient can have treatment out side the State and the expenditure incurred on that treatment shall be reimbursed provided that it should be certified by Principal of 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 and it is absolutely essential for the recovery of the patient to have treatment at a hospital outside the State.
10. The question does arise whether the treatment of bypass surgery was not available at all in any Government Hospital of State of Rajasthan, for that an opinion of concerned doctor is necessary and on that basis the Principal of Medical College will issue certificate to this effect. Whether the by- pass surgery was available or not, in the year 1991, in SMS Hospital, Jaipur. No such certificate has been obtained by the petitioner from the Principal of Medical College, SMS, Hospital, Jaipur. Learned counsel for the petitioner failed to prove that the petitioner was not in a position to move from Delhi during the period from 2.4.91 to 15.4.91 and to obtain a certificate from the Principal of Medical College, SMS Hospital, Jaipur. In absence of that evidence it is impossible to find out that the petitioner was not in a position to move from Delhi after 2.4.91 to 15.4.91. It is a disputed question of fact which requires enquiry and which cannot be decided in jurisdiction under Article 226 of the Constitution of India.
11. When the petitioner has neither obtained the certificate form the Principal of Medical College, SMS Hospital, Jaipur, which was required according to the provisions of Sub-rule 1 of Rule 17 of the Rules, 1970, nor he as led any satisfactory evidence which prove that the petitioner remained on bed for the period from 2.4.91 to 15.4.91 and the petitioner was not in a position to come to Jaipur from Delhi and to obtain a certificate required under Sub-rule 1 of Rule 17 of the Rules 1970. If such type of claim are allowed on the basis of mere averments that petitioner was not in a position to come to Jaipur from Delhi, the provisions of Sub-rule (1) of Rule 17 of the Rules 1970 will become redundant. In such situation any patient without obtaining proper certificate can have treatment for the disease out side the State, while the treatment of such disease is available in the State itself. In such circumstances it cannot be believed that the petitioner was tying on bed, for the period from 2.4.91 to 15.4.91 when he has not led any satisfactory evidence in this regard. I can not allow the claim of petitioner which requires enquiry and cannot be entertained under Article 226 of the Constitution of India. Consequently, I find no force in the writ and the same is dismissed.