{"id":209415,"date":"2008-04-01T00:00:00","date_gmt":"2008-03-31T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-karnataka-and-another-vs-sri-r-vivekananda-swamy-on-1-april-2008"},"modified":"2017-10-02T13:08:32","modified_gmt":"2017-10-02T07:38:32","slug":"state-of-karnataka-and-another-vs-sri-r-vivekananda-swamy-on-1-april-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-karnataka-and-another-vs-sri-r-vivekananda-swamy-on-1-april-2008","title":{"rendered":"State Of Karnataka And Another vs Sri R. Vivekananda Swamy on 1 April, 2008"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Karnataka And Another vs Sri R. Vivekananda Swamy on 1 April, 2008<\/div>\n
Author: S Sinha<\/div>\n
Bench: S.B. Sinha, V.S. Sirpurkar<\/div>\n
           CASE NO.:\nAppeal (civil)  2336 of 2008\n\nPETITIONER:\nState of Karnataka and another\n\nRESPONDENT:\nSri R. Vivekananda Swamy\n\nDATE OF JUDGMENT: 01\/04\/2008\n\nBENCH:\nS.B. SINHA & V.S. SIRPURKAR\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nREPORTABLE<\/p>\n
CIVIL APPEAL NO. 2336 OF 2008
\n(Arising out of SLP (C) No. 2593 of 2006)
\nWITH
\nCIVIL APPEAL NO. 2335 OF 2006
\n(Arising out of SLP (C) No. 1387 of 2006)
\nState of Rajasthan and others\t\t\t\t\t       Appellants
\n\tVersus
\nSmt. Savitri Upadhyay\t\t\t\t\t\t      Respondent <\/p>\n
S.B. SINHA, J.\n<\/p>\n
1.\tLeave granted in both the matters.\n<\/p>\n
2.\tInterpretation and\/or application of Medical Benefit Rules applicable
\nin the State of Karnataka as also in the State of Rajasthan is in question
\nbefore us in these appeals which arise out of the judgment and order dated
\n20th June, 2005 passed by a Division Bench of the Karnataka High Court in
\nWrit Petition No. 10942 of 2005 and that of the judgment and order dated 4th
\nAugust, 2005 passed by a Division Bench of the High Court of Rajasthan,
\nJaipur Bench, Jaipur in D.B. Civil Writ Petition No.6502 of 2004
\nrespectively.\n<\/p>\n
3.\tRespondent in the Karnataka case is an officer working in the Office
\nof the Department of Commercial Taxes.  He underwent ‘Coronary Artery’
\nBypass Surgery in the Wockhardt Hospital and Heart Institute having been
\nadmitted on 19th June, 2000.  A sum of Rs.1,50,600\/- was said to have been
\nincurred by him by way of medical expenses.  He claimed re-imbursement
\nthereof.  The State of Karnataka sanctioned and reimbursed a sum of
\nRs.39,207\/-.  Feeling aggrieved, a writ petition was filed which, by reason of
\nthe impugned judgment, has been allowed.\n<\/p>\n
4.\tRajasthan case, relates to one Ajay Upadhyay, who was a Judicial
\nofficer.  He had been suffering from some kidney problems.  Respondent
\nherein is his mother.  Ajay Upadhyay was being treated for renal failure in
\n1997.  He was referred to AIIMS for kidney transplantation by the SMS
\nMedical College and Hospital, Jaipur.  However, as AIIMS showed its
\ninability to admit him because of non-availability of bed.  Transplantation of
\nkidney was carried out in Batra Hospital, Delhi, in 1997.  Respondent, who
\nwas also an employee of the State claimed reimbursement of the said
\nmedical expenses.  However, a sum of Rs.50,000\/- was allegedly found
\nadmissible for the purpose of reimbursement out of the total claim of a sum
\nof Rs.2.11 lacs.  Respondent, however, claimed that the entire sum may be
\nreimbursed.  Other medical expenses incurred by Ajay Upadhyay, as follow
\nup measures, have been reimbursed to the respondent herein.\n<\/p>\n
\tAjay Upadhyay joined Rajasthan Judicial Service in the year 2000.  In
\nFebruary, 2003 he got himself treated in Batra Hospital.  Allegedly his case
\nwas not referred therefor by the SMS Medical College and Hospital, Jaipur.\n<\/p>\n
\tAs he was not treated by AIIMS, he filed a writ petition in the High
\nCourt of Delhi for a direction to admit him therein.  However, because of an
\nemergent situation, he got himself admitted in the Batra Hospital.  The said
\nwrit petition was withdrawn.\n<\/p>\n
In the month of May, 2003 he again came to Delhi and got himself
\nadmitted and treated in Batra Hospital.  He filed a representation before the
\nRegistrar General of the High Court of Rajasthan that on account of the
\nsudden demise of his maternal uncle, he had to go to Delhi and as he fell ill
\nthere, went straightaway to Batra Hospital.  He, therefore, prayed for
\nreimbursement of his medical expenses incurred on that occasion also.\n<\/p>\n
\tIndisputably, however, the Principal and Controller, SMS Medical
\nCollege and Hospital, on or about 5th July, 2003, referred him to AIIMS.
\nAllegedly in the reference order it was mentioned that the same was subject
\nto medical expenses with a ceiling of Rs.10,000\/- only.  Ajay Upadhyay
\nobtained treatment in the Batra Hospital from 4th July to 29th July, 2003.  He
\nunfortunately breathed his last on 7th November, 2003.  Respondent claimed
\nmedical reimbursement to the tune of Rs.6,52,148\/- with interest.  Only a
\nsum of Rs.75,000\/- was, however, sanctioned by the State of Rajasthan as
\nbeing admissible, purported to be in terms of the Rules.\n<\/p>\n
5.\tFeeling aggrieved, a writ petition was filed in the High Court of
\nRajasthan which by reason of the impugned judgment and order has been
\nallowed directing :-\n<\/p>\n
\t”\tAs a result of the aforesaid discussion the writ
\npetition succeeds and same is allowed.  The respondents
\nare directed to release the amount of Rs.6,52,148\/- in
\nfavour of the Petitioner of the medical expenses bills of
\nBatra Hospital, New Delhi, where his son late Shri Ajay
\nUpadhyay, an officer of the Rajasthan Judicial Service
\nwas treated, within a period of two months from the date
\nof receipt of the copy of this order.  The respondents are
\nfurther directed to pay to the petitioner on the aforesaid
\namount the interest at the rate of 6% per annum from the
\ndate of submission of the first medical bill for
\nreimbursement of the amount of Batra Hospital, New
\nDelhi, till the payment thereof is made.”\n<\/p>\n
6.\tBefore embarking on the contentions raised by learned counsel in
\nthese appeals, we may notice the relevant Rules framed by the States of
\nKarnataka and Rajasthan.\n<\/p>\n
7.\tThe State of Karnataka in exercise of its power conferred upon it by
\nthe proviso to Article 309 of the Constitution of India and in supersession of
\nthe Karnataka Government Servants’ (Medical Attendance) Rules, 1957
\nframed the Karnataka Government Servants’ (Medical Attendance) Rules,
\n1963 (for short the 1963 Rules).\n<\/p>\n
Rule 2 of the 1963 Rules provides that the same shall apply mutatis
\nmutandis to the family of a Government servant as would apply to the
\nGovernment servant himself.  The explanations appended thereto reads :-\n<\/p>\n
“2.\tApplication.
\nExplanation .- I.\tFor the purposes of these rules,
\n“family” means.-\n<\/p>\n
(i)\tthe wife or husband ;\n<\/p>\n
(ii)\tthe father and mother including step-mother; and <\/p>\n
(iii)\tchildren including adopted children and step-
\nchildren, of a Government servant who are wholly
\ndependent on such Government servant.\n<\/p>\n
Explanation II.  For the purpose of this sub-rule,. The
\nfather and mother including step-mother shall be
\nregarded as wholly dependent on the Government servant
\nif they ordinarily reside with him and their total monthly
\nincome does not exceed two thousand rupees.”\n<\/p>\n
\t“Authorised hospitals” and “medical institutions” have been defined
\nin Rule 3(aa) to mean the hospitals and medical institutions specified in
\nSchedule I.  Rule 7 entitles a Government servant to receive free medical
\ntreatment in such Government Hospitals at or near the place where he falls
\nill, as can, in the opinion of the authorized medical attendant, provide the
\nnecessary and suitable treatment.  “Authorised medical attendant” has been
\ndefined in Section 3(a) to mean a medical officer who is a Gazetted
\nGovernment servant working in a Government hospital or Government
\nMedical institution and various other authorities as specified therein.  Rule
\n8(1), although is not relevant for our purposes, may be noticed which is in
\nthe following terms :-\n<\/p>\n
“8.  \tAdmission to and treatment in wards.  (1) the
\npatients who under these rules, are eligible for treatment
\nin a particular class of paying or special ward, may get
\nthemselves treated in any higher class of ward, by paying
\nthe difference in the rates for the two classes of wards.”\n<\/p>\n
Proviso appended to sub-rule (3) of Rule 8, which was introduced by
\nreason of the Notification dated 22nd January, 2001, reads thus :-\n<\/p>\n
”\tProvided that notwithstanding anything contained
\nin these rules the Government Servant and his family
\nshall be eligible for treatment in the wards of the
\nauthorized hospitals and medical institutions specified in
\nSchedule I as per the rates specified in the Table below.-\n<\/p>\n
Range of Pay
\nCategory of  Ward \/
\nClass of
\naccommodations to
\nwhich entitled
\nMaximum ward
\ncharges \/ room rent
\nto which entitled<\/p>\n
(1)<\/span>
\n(2)<\/span>
\n(3)<\/span>\n<\/p>\n
(i)
\nUpto Rs.4,350
\nper month
\nGeneral Ward
\nRs.100\/- per day\n<\/p>\n
(ii)
\nRs.4,351 to
\nRs.11,840 per
\nmonth,
\nSemi-Private Ward
\nRs.200\/- per day\n<\/p>\n
(iii)
\nRs.11,841 and
\nabove
\nPrivate Ward
\nRs.500\/- per day<\/p>\n
Rule 14 specifies as to how and in what manner, the reimbursement of
\nmedical expenses is to be carried out.\n<\/p>\n
Rule 15 provides for claims for reimbursement of medical charges.
\nRule 31 empowers the Government to relax the provisions of the said Rules.\n<\/p>\n
8.\tThe judgment of the Tribunal, which was affirmed by the High Court,
\nwas based on the premise that persons similarly situated who had taken
\ntreatment from Wockhardt Hospital and Heart Institute had been given the
\nbenefit of the reimbursement of the medical bills, although the respondent
\nwas denied of the said benefit.\n<\/p>\n
9.\tThe Government of Rajasthan also in exercise of its powers conferred
\nupon it by the proviso to Article 309 of the Constitution of India made Rules
\nknown as Rajasthan Civil Services (Medical Attendance) Rules, 1970 (in
\nshort the 1970 Rules).\n<\/p>\n
Rule 2 provides for the extent of application of the said Rules which
\nincludes all government servants.  Rule 3(1) defines “Authorised Medical
\nAttendant”   “Authorised medical attendant” has been defined in Section
\n3(a) to mean a Medical Officer of the Rajasthan Medical Department on
\nduty in a hospital or dispensary and various other authorities as specified
\ntherein.\n<\/p>\n
“6.\tMedical attendance and treatment outside
\nRajasthan.- (1) A Government servants including
\nmembers of his family  posted to a station or sent on duty
\nor spending leave or otherwise at a station outside
\nRajasthan in India and who falls ill shall be entitled to
\nfree medical attendance and treatment as an indoor and
\noutdoor patient in a Hospital maintained by the Central
\nGovernment or other State Government on the scale and
\nconditions which would be admissible to him under these
\nrules, had he been on duty or on leave in Rajasthan.\n<\/p>\n
(2)\tFor the purpose of this rule “Authorised Medical
\nAttendant” in respect of a Government servant or class of
\nGovernment servant at a station outside Rajasthan shall
\nmean an officer of Medical Department of Central or
\nother State Government (as the case may be) on duty in a
\nGovernment hospital or Dispensary at that station.\n<\/p>\n
(3)\tThe charges paid by the Government Servant
\nposted at Delhi to the following private hospitals\/clinics
\nfor X-Ray, Pathological, Baceterilogical, Radiological
\ntests and other kind of investigations which are
\nconsidered necessary by the doctor of the State
\nGovernment posted in Delhi, shall be re-imbursed:-\n<\/p>\n
1.\tSunderlal Jain Charitable Hospital, Ashok Vihar.\n<\/p>\n
2.\tMassonic Charitable Polyclinic, Janpath, and\n<\/p>\n
3.\tSir Gangaram Hospital, Rajendra Nagar.\n<\/p>\n
7.\tTreatment of a disease for which treatment is not
\navailable in the State.  (1)  A Government servant and
\nthe members of his family suffering from a disease for
\nwhich treatment is not available in any Government
\nhospital in the State shall be entitled to medical
\nattendance and treatment to the extent indicated in sub-
\nrule (2) of this rule in a Hospital\/Institution outside the
\nState recognized by the Government, provided that it is
\ncertified by the Principal of a Medical College\/Director
\nof Medical & Health Services on the basis of opinion of
\nthe Authorised Medical Attendant to the effect that the
\ntreatment of a particular disease from which the patient is
\nsuffering is not available in any Government Hospital in
\nthe State and it is considered absolutely essential for the
\nrecovery of the patient to have treatment at a hospital
\noutside the Sate.\n<\/p>\n
(2)\tThe following charges\/expenses shall be
\nreimbursable:-\n<\/p>\n
(a)\tCost (including Sales Tax) of Allopathic Drugs,
\nMedicines, Vaccines, Sera or other therapeutic
\nsubstances reimbursable under these rules.\n<\/p>\n
(b)\tSums actually paid to the Hospital\/Institution on
\naccount of medical attendance and treatment
\nincluding charges for surgical operations and
\nordinary nursing facility.\n<\/p>\n
(c)\tTravelling allowance for journey by rail\/road from
\nduty point at the station at which the patient falls
\nill to the place of treatment outside the State and
\nback to a single fare of the class to which his
\nclassification entitles him under Rajasthan
\nTravelling Allowance Rules.  Such traveling
\nallowance shall also be admissible for an attendant,
\nif the Authorised Medical Attendant certifies in
\nwriting that it is unsafe for the patient to travel
\nunattended and that an attendant is necessary to
\naccompany the patient to the place of treatment
\nand back.\n<\/p>\n
(3)\tThe facility of medical attendance and treatment in
\nthe type of cases mentioned in sub-rule (1) can be had at
\nany of Hospitals\/Institutions mentioned in Appendix 11.\n<\/p>\n
(4)\tFor the purpose of reimbursement, the original
\nreceipts issued by such Hospital\/Institutions and
\nvouchers of medicines etc. shall be countersigned by the
\nAuthorised Medical Attendant of Government Hospital
\non whose advice the treatment outside the State was
\nundertaken.”\n<\/p>\n
It does not appear that 1970 Rules provide for any power of
\nrelaxation.\n<\/p>\n
10.\tMr. Hegde, learned counsel appearing on behalf of the State of
\nKarnataka and Mr. Aruneshwar Gupta, the learned Additional Advocate
\nGeneral, appearing on behalf of the State of Rajasthan submitted that having
\nregard to the Rules framed by the States, the validity whereof is not being in
\nquestion and in fact having been upheld by this Court, the High Courts of
\nKarnataka and Rajasthan committed serious errors in issuing the impugned
\ndirections.\n<\/p>\n
11.\tMr. Bhat, learned counsel appearing on behalf of the respondent in
\nKarnataka case, would, on the other hand, submit that the power of
\nrelaxation should have been exercised by the appropriate authority
\njudiciously and in a case of this nature, Article 14 of the Constitution of
\nIndia is attracted.  It was urged that as a large number of non Government
\nHospitals are now included in the list of hospitals, the impugned judgment
\nshould not be interfered with.\n<\/p>\n
12.\tMs. Shoba, learned counsel appearing on behalf of the respondent in
\nRajasthan case took us to the entire factual aspect of the matter and
\nsubmitted that the High Court judgment is unexceptionable, keeping in view
\nthe fact that whatever is required to be paid is reimbursement of the bills for
\nthe month of May-June, 2003, although the State has reimbursed the bills for
\nmedical expenses for February, 2003, July, 2003 and also October, 2003.  It
\nwas urged that as even in relation to the reimbursement of the medical bills
\nfor the year 1997, the State has favourably responded, the High Court cannot
\nbe said to have committed any error in issuing the impugned directions,
\nparticularly when correctness of the bills was verified and recommended by
\nthe High Court.\n<\/p>\n
13.\tLaw operating in this field, as is propounded by Courts from time to
\ntime and relevant for our purpose, may now be taken note of.\n<\/p>\n
14.\tIn Surjit Singh   vs.  State of Punjab and others : (1996) 2 SCC 336
\nthis Court in a case where the appellant therein while in England fell ill and
\nbeing a case of emergency case was admitted in Dudley Road Hospital,
\nBirmingham.  After proper medical diagnosis he was suggested treatment at
\na named alternate place.   He was admitted and undergone bypass surgery in
\nHumana Hospital, Wellington, London.   He claimed reimbursement for the
\namount spent by him.  In the peculiar facts of that case it was held :-
\n“11. It is otherwise important to bear in mind that self
\npreservation of one’s life is the necessary concomitant of
\nthe right to life enshrined in Article 21 of the
\nConstitution of India, fundamental in nature, sacred,
\nprecious and inviolable. The importance and validity of
\nthe duty and right to self-preservation has a species in the
\nright of self defence in criminal law. Centuries ago
\nthinkers of this Great Land conceived of such right and
\nrecognised it. Attention can usefully be drawn to verses
\n17, 18, 20 and 22 in Chapter 16 of the Garuda Purana (A
\nDialogue suggested between the Divine and Garuda, the
\nbird) in the words of the Divine :\n<\/p>\n
17. Vinaa dehena kasyaapi canpurushaartho na vidyate
\nTasmaaddeham dhanam rakshetpunyakarmaani
\nsaadhayet                                <\/p>\n
Without the body how can one obtain the objects of
\nhuman life?  Therefore protecting the body which is the
\nwealth, one should perform the deeds of merit.\n<\/p>\n
18. Rakshayetsarvadaatmaanamaatmaa sarvasya
\nbhaajanam Rakshane yatnamaatishthejje
\nvanbhaadraani pashyati                <\/p>\n
One should protect his body which is responsible for
\nevery thing. He who protects himself by all efforts, will
\nsee many auspicious occasions in life.\n<\/p>\n
 20. Sharirarakshanopaayaah  kriyante sarvadaa
\nbudhaih Necchanti cha punastyaagamapi
\nkushthaadiroginah                      <\/p>\n
The wise always undertake the protective measures for
\nthe body. Even the persons suffering from leprosy and
\nother diseases do not wish to get rid of
\nthe body.\n<\/p>\n
22. Aatmaiva   yadi   naatmaanamahitebhyo    nivaarayet
\nKonsyo hitakarastasmaadaatmaanam taarayishyati                    <\/p>\n
If one does not prevent what is unpleasent to himself,
\nwho else will do it? Therefore one should do what is
\ngood to himself.”\n<\/p>\n
We may, however, notice that in that case, before this Court, Rules
\nframed under the proviso to Article 309 of the Constitution of India, were
\nnot in force.  What were in force were the Policies regarding reimbursement
\nof medical expenses framed by the State of Punjab on 25th January, 1991 and
\n8th October, 1991.\n<\/p>\n
15.\tThis Court, however, considered the validity of a rule in regard to
\nreimbursement of the medical expenses viz-a-viz the fundamental right of a
\ncitizen in terms of new policy evolved by the State of Punjab limiting claim
\nfor reimbursement in State of Punjab and others  vs.  Ram Lubhaya Bagga
\nand others<\/a> : (1998) 4 SCC 117, opining :-\n<\/p>\n
“23. When we speak about a right, it corelates to a duty
\nupon another, individual, employer, Government or
\nauthority. In other words, the right of one is an obligation
\nof another. Hence the right of a citizen to live under
\nArticle 21 casts obligation on the State. This obligation is
\nfurther reinforced under Article 47, it is for the State to
\nsecure health to its citizen as its primary duty. No doubt
\nGovernment is rendering this obligation by opening
\nGovernment hospitals and health centers, but in order to
\nmake it meaningful, it has to be within the reach of its
\npeople, as far as possible, to reduce the queue of waiting
\nlists, and it has to provide all facilities for which an
\nemployee looks for at another hospital. Its up-keep;
\nmaintenance and cleanliness has to be beyond aspersion.
\nTo employ the best of talents and tone up its
\nadministration to give effective contribution. Also bring
\nin awareness in welfare of hospital staff for their
\ndedicated service, give them periodical, medico-ethical
\nand service oriented training, not only at the entry point
\nbut also during the whole tenure of their service. Since it
\nis one of the most sacrosanct and valuable rights of a
\ncitizen and equally sacrosanct sacred obligation of the
\nState, every citizen of this welfare State looks towards
\nthe State for it to perform its this obligation with top
\npriority including by way of allocation of sufficient
\nfunds. This in turn will not only secure the right of its
\ncitizen to the best of their satisfaction but in turn will
\nbenefit the State in achieving its social, political and
\neconomical goal. For every return there has to be
\ninvestment. Investment needs resources and finances. So
\neven to protect this sacrosanct right finances are an
\ninherent requirement. Harnessing such resources needs
\ntop priority.”\n<\/p>\n
However, having regard to the fact that the medical facilities
\ncontinued to be given and an employee was given free choice to get
\ntreatment from any private hospital in India but the amount of payment for
\nreimbursement was regulated, it was opined :-\n<\/p>\n
“29.\t No State or any country can have unlimited
\nresources to spend on any of its project. That is why it
\nonly approves its projects to the extent it is feasible. The
\nsame holds good for providing medical facilities to its
\ncitizen including its employees. Provision of facilities
\ncannot be unlimited. It has to be to the extent finance
\npermit. If no scale or rate is fixed then in case private
\nclinics or hospitals increase their rate to exorbitant scales,
\nthe State would be bound to reimburse the same. Hence
\nwe come to the conclusion that principle of fixation of
\nrate and scale under this new policy is justified and
\ncannot be held to be violative of Article 21 or Article 47
\nof the Constitution of India.”\n<\/p>\n
16.\tThe said principle was reiterated in State of State of Punjab and others
\nvs.  Mohan Lal Jindal<\/a> : (2001) 9 SCC 217.\n<\/p>\n
17.\tThe question came up for consideration before this Court in
\nConfederation of Ex-Servicemen Association and others  vs.  Union of India
\nand others<\/a> : (2006) 8 SCC 399 wherein a Constitution Bench of this Court
\nhad the occasion to notice Ram Lubhaya Bagga (supra).  Agreeing therewith
\nit was opined :-\n<\/p>\n
”\tIn our considered opinion through the right to
\nmedical aid is a fundamental right of all citizens
\nincluding ex-servicemen guaranteed by Article 21 of the
\nConstitution, framing of scheme for ex-servicemen and
\nasking them to pay “one time contribution” neither
\nviolates Part III nor is it inconsistent with Part IV of the
\nConstitution.  Ex-servicemen who are getting pension
\nhave been asked to become members of ECHS by
\nmaking “one time contribution” of reasonable amount
\n(ranging from Rs.1800 to Rs.18,000\/-.  To us, this cannot
\nbe held illegal, unlawful, arbitrary or otherwise
\nunreasonable.”\n<\/p>\n
18.\tIn view of the aforementioned settled principles of law there cannot
\nbe any doubt that the Rules regarding reimbursement of medical claim of an
\nemployee when he obtains treatment from a hospital of his choice can be
\nmade limited.  Such a rule furthermore having been framed under the
\nproviso to Article 309 of the Constitution of India constitutes conditions of
\nservice in terms whereof on the one hand the employee would be granted the
\nfacility of medical aid free of cost from the recognized government hospitals
\nand on the other he, at his option, may get himself treated from other
\nrecognized hospitals\/institutions subject of course to the conditions that the
\nreimbursement by the State therefor would be limited.\n<\/p>\n
19.\tIn the Karnataka case, however, it is necessary to take into
\nconsideration the provisions of Rule 31 of 1963 Rules which confers an
\nunequivocal power of relaxation to the authorised authorities specified
\ntherein.  A public authority may exercise its power of relaxation only where
\nthere exists a provision therfor.  [See –   Kendriya Vidyalaya Sangathan and
\nOrs.  vs.   Sajal Kumar Roy and Ors<\/a> : (2006) 8 SCC 671 Pitta Naveen
\nKumar and others.  vs.  Raja Narasaiah Zangiti and others (2006) 10 SCC
\n261 ].\n<\/p>\n
20.\tIt, however, goes without saying that while exercising such a power,
\nthe authority must act judiciously keeping in mind the purport and object
\nthereof.  Considerations therefor, although may not partake a mathematical
\nexactable but should always be fair and reasonable.  Although it may not be
\npossible for an employee to enforce a purported right on the premise that
\nanother person had obtained reimbursement for a similar kind of treatment,
\nordinarily fair procedure envisages a broad similarity.  If any person has
\nbeen shown any undue favour, we may add, by itself may not be a ground to
\nfavour another but when such a contention is raised, the State should be able
\nto demonstrate a fair treatment.  It is possible to draw a distinction on the
\nbasis of several factors, emergent situation being one of them.  So viewed,
\nwe do not find that the State of Karnataka had acted arbitrarily.\n<\/p>\n
21.\tRajasthan case, however, involves some disputed questions of fact.
\nAay Upadhyay was a Judicial Officer.  Indisputably he was suffering from a
\nserious disease.  The contention of the respondent to the effect that the
\nappellant herein herself being a government employee was able to obtain
\nreimbursement of the amount spent towards his treatment as far as back in
\n1977.  We do not see any reason why he should not be reimbursed for the
\nlater period.  It is true that ordinarily a government employee may have to
\nget himself treated in AIIMS; it being a pioneer super-speciality institution,
\nbut we cannot also shut our eyes to the fact that for one reason or the other,
\nAjay Upadhyay could not be admitted in AIIMS.  A writ petition was filed
\nin the Delhi High Court which, because of passage of time, although was
\nwithdrawn but it is difficult for us to arrive at one conclusion or the other
\nonly on the basis of the averments made by the parties to the writ petition
\nbefore the High Court; one of them being AIIMS itself.  He developed
\ntrouble even after joining judicial service.  He admittedly was referred to
\nAIIMS.  Whether such reference was made in February, 2003 or July, 2003
\nmay be a matter of dispute.  But if without any order of reference in
\nFebruary, 2003 reimbursement of expenditure incurred in February, 2005
\nhas been effected and similarly for July and October  November, 2003 the
\nrespondent was reimbursed, we do not see any reason as to why
\nreimbursement of the medical expenses for the period May and June, 2003
\nwould not be allowed.\n<\/p>\n
22.\tThe State might be fighting this case on principle.  It may be correct
\nin its view.  Applying the Rules strictly, respondent might not have been
\nentitled for reimbursement for the period subsequent to the date of reference
\nand not prior thereto.  But as indicated hereinbefore there is is no reason to
\nignore the statement made in para 2 of the additional affidavit filed on behalf
\nof the respondent, which is to the following effect :-\n<\/p>\n
“2)\tThat the State Govt. had allowed the full
\nreimbursment of medical bills of late Shri Ajay
\nUpadhyay incurred in Batra Hospital, New Delhi, for the
\nperiod of treatment in Batra Hospital, from 04.02.03 to
\n10.02.03 and from 04.11.03 to 07.11.03, and as such the
\nreimbursement of medical bills of late Shri Ajay
\nUpadhyay are still pending from 13.05.03 to 21.10.03
\namounting to Rs.5,98,406.75 of Batra Hospital, New
\nDelhi.”\n<\/p>\n
23.\tWhat, however, is requited to be taken into consideration is the three
\nbills amounting to Rs,5,98,406.75 for the period 13.05.03 to 21.10.03.\n<\/p>\n
24.\tThere appears to be some discrepancies in regard to the said bills.  We
\nare not concerned with the 1997 bills.  Our attention has been drawn to the
\nfollowing bills.\n<\/p>\n
\tThe first Bill was of Rs.42,197.00 for the period 04.03.03 to 10.02.03
\nAs noticed hereinbefore the said bill has already been paid.\n<\/p>\n
\tThe second bill is for Rs.3,16,311.750 for the period 13.05.03 to
\n11.06.03.  The said bill remains unpaid.\n<\/p>\n
The third bill is for reimbursement of Rs.1,15,619.00 for the period
\n04.07.03 to 29.07.03.\n<\/p>\n
The fourth bill does not appear to be on record.  But from the
\nrespondent’s letter dated 21st April, 2006 it appears that the same was for a
\nsum of Rs.31,544\/- for the period 04.11.03 to 07.11.03 which has already
\nbeen paid.\n<\/p>\n
25.\tThe dispute, thus, centres round the aforementioned two bills
\namounting to Rs.3,16.311.75 ps. and Rs.1,15,619.00.\n<\/p>\n
26.\tIn a case of this nature, we are of the opinion, that having laid down
\nthe law for the future that claim for reimbursement must be made only in
\nterms of the Rules and not dehors the same, and more so, when there is no
\npower of relaxation, in exercise of our jurisdiction under Article 142 of the
\nConstitution of India, we direct the States of Karnataka and Rajasthan to pay
\nthe balance amounts.  However, this order shall not be treated as a
\nprecedent.\n<\/p>\n
We may, however, state that the reason for such a direction is that so
\nfar as the State of Karnataka is concerned, it has enlisted a large number of
\nhospitals as approved medical institutions enabling its employees to obtain
\ntreatment therefrom.\n<\/p>\n
27.\tSo far as the Rajasthan case is concerned unlike the State of
\nKarnataka there is no provision for exemption for payment of portion of the
\namount of bill which would be corresponding to the costs which would have
\nbeen otherwise incurred by the employee in obtaining treatment from
\nAIIMS.  It is furthermore evident that ex-post facto sanction had been
\ngranted.  The State did not disclose the basis for such grant.  The grant was
\nnot dehors the Rules.   Ajay Upadhyay indisputably obtained treatment at
\nBatra Hospital from time to time.  He being a judicial officer, the bills
\nsubmitted by him had been verified by the Registrar of the High Court.
\nRecommendations had also been made by the High Court for reimbursement
\nof the said bills.\n<\/p>\n
28.\tWe, therefore, are of the opinion that in order to do complete justice
\nto the parties, we pass the order as proposed hereinbefore and direct the
\nStates of Karnataka and Rajasthan to pay the balance amounts to the
\nrespondent.\n<\/p>\n
29.\tThe appeals are disposed of with the above directions.  In the facts
\nand circumstances of the cases there shall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Karnataka And Another vs Sri R. Vivekananda Swamy on 1 April, 2008 Author: S Sinha Bench: S.B. Sinha, V.S. Sirpurkar 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: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-209415","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Karnataka And Another vs Sri R. 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