ASOPA, J. - (1.) BY this writ petition, the petitioner has prayed for quashing the order dated 18. 3. 1996 passed by the State Government whereby increase in the earlier sanctioned amount has been denied and has further claimed reimbursement of the balance amount of treatment abroad of her husband, amounting to Rs. 11. 04 lacs together with interest. Further prayer for grant of compensation has also been made by the petitioner.
(2.) FACTS of the case with regard to taking medical treatment abroad by husband of the petitioner Rajendra Kumar Gupta, who at the relevant time was employed as Electrical Engineer in Instrumentation Limited, Kota are not in dispute. Other facts of sanction of Rs. 2 lacs by way of advance vide order dated 7. 7. 1995 and receipt thereof by the petitioner are also not disputed. Petitioner in para 8 of the writ petition has mentioned the fact that the Principal, SMS Medical College vide his letter dated 5. 4. 1995 clarified that bone marrow transplant facility is not available in India and further mentioned the estimated cost of treatment in U. K. as Rs. 17. 30 to 27. 00 lacs and in USA Rs. 30. 00 to 37. 00 lacs. considering the above mentioned fact, the petitioner took her husband to UCL Hospital in UK where cost of treatment was comparatively low as compared to USA. The petitioner incurred an expenditure of Rs. 13. 04 lacs. However, claim of the petitioner for reimbursement of the balance amount of Rs. 11. 04 lacs on account of taking treatment in UCL Hospital, London for Bone Marrow Translant (Stem Cell Transplant) is in dispute on the ground of entitlement of the reimbursement of expenses incurred in the abroad treatment of the petitioner's husband under the Rajasthan Civil Services (Medical Attendant) Rules, 1970 (in short `the Rules of 1970') whereas according to the petitioner, case of her husband is covered by the circular dated 21. 2. 1989 specifically issued for taking treatment abroad, for the reason that facility for treatment of such ailment in India is yet not widely established. The petitioner submitted all the medical bills for the treatment taken by her husband at UCL Hospital, UK duly verified by the doctor. Therefore, the petitioner is entitled to reimbursement of expenses incurred in treatment of her husband as aforesaid taken outside India. The petitioner has based her claim on Rule 3 (1) (ix) of the Rules of 1970 and the circular dated 21. 2. 1989 (Anx. 21 ). The respondent has denied the entitlement of the petitioner by placing reliance on note appended to Rule 3 (1) (ix), 4 and 5 (2) of the Rules of 1970 according to which where the husband and wife both are government servants, then option has to be exercised first and further claim for medical reimbursement shall be preferred by the person who is in receipt of higher salary. Neither the option was validly exercised nor the salary certificate was produced and further the circular dated 21. 2. 1989 is not applicable. Respondent has not disputed the fact that Bone Marrow Transplantation facility is not available in Rajasthan/india and cost of treatment-bone marrow transplant (Stem Cell Transplant) in U. K. is comparatively lower than U. S. A. (Anx. 7) and further had also not disputed genuineness of the medical reimbursement bills submitted by the petitioner. In the aforesaid facts and circumstances of the case, the core question involved in the matter is as under: " Whether as per the aforesaid rules, the petitioner is entitled to submit the bill for the reimbursement of expenses incurred in medical treatment of her husband who at the relevant time was working in Instrumentation Limited, Kota and the further question is that whether petitioner is entitled for full reimbursement of expenses of Rs. 11. 04 lacs incurred in the treatment taken abroad by her husband as per circular dated 21. 2. 1989 of bone marrow transplant (Stem Cell Transplant), for which facility of treatment in India is yet not widely established? The submissions of petitioner and respondents on the aforesaid questions shall be dealt with at appropriate place hereinafter. Before proceeding to decide the aforesaid question, it would be relevant to quote Rule 3 (1) (ix) Rule 4 (4) and 5 (2) of the Rules of 1970 which read as under: Rule 3 (1) (ix) of the Rules of 1970 with Note appended thereto: = "family" means Government servant's wife (not more than one) husband (in the case of a woman Government servant), children including children adopted legally and parents, if wholly dependent upon the Government servant. = Note:-The condition of dependence both in the case of husband or wife of the Government servant has been dispensed with provided the Government servant has exercised an option, intimating the Appointing authority, that claims of medical reimbursement will be made to Government for the spouse even though his/her spouse is employed elsewhere in a body having prescribed procedures for reimbursement of medical expenses. Such option can be revised only with Government approval. " Rule 4 (4) of the Rules of 1970 = "4. Treatment at Government Hospital as Indoor/outdoor patient etc. = (1 ). . . . . = (2) . . . = (3). . . . = (4) Admissibility of Travelling allowance to ailing government servants in certain circumstances: = (i) If a Government servant falls ill at a place which is not the Headquarters of the Authorised Medical Attendant, he shall be entitled to traveling allowance as on tour except the halting allowance for the journey to end from such headquarter provided that he does not undertake journey for attendance by a dentist or an oculist. In case the condition of the ailing government servant is so serious that he cannot be carried to the headquarters of the Authorised Medical Attendant in any conveyance, the Authorised Medical Attendant attending the patient at his residence shall be entitled to Travelling Allowance as on tour for forward and return journey from his head quarters to the place of residence of the ailing Government servant under Travelling Allowance Rules. (ii) If the Authorised Medical Attendant is of opinion that the condition of the patient is so serious or of special nature as to require medical attendance by a specialist medical officer other than himself, he may send the patient to the nearest specialist or other medical officer concerned. The ailing Government servant sent to another station from the headquarters of the Authorised Medical Attendant shall be entitled to Travelling Allowance as on tour without any halting allowance for the forward and return journey from and to the headquarters of specialist or other medical officer. An attendant escort accompanying the patient under written instructions from the Authorised Medical Attendant for the safety of the patient shall also be entitled to Travelling Allowance on the scale admissible to the Government servant himself on tour without any halting allowance. In case a Government servant travels by air or in air- conditioned class for this purpose, the travelling allowance shall be limited to traveling allowance admissible to him for journey by rail (except in air-conditioned coach)/road under Rajasthan Travelling Allowance Rules, as on tour without any halting allowance. " Rule 5 (2) of the Rules of 1970 "5. Medical Attendance and Treatment of members of family of a Government servant- (1 ). . . . . . = (2) Where both husband and wife are Government servant, they shall be entitled to medical attendance and treatment as independent entity according to his/her status under these rules. In such case the claim for reimbursement of medical expenses of the members of family dependent upon them shall be preferred by either husband or wife whoever is in receipt of higher pay. "
(3.) CLAUSES 4 and 5 of the circular dated 21. 2. 1989 read as under: = "4. The following ailments have been identified by the Central Government vide their Office Memorandum No. S. 14025/99/81; MS dated 6th December, 1982 as being such for which facilities for treatment in India are not yet widely established; and these have been accepted by the State Government also for adoption. = (i) Cadaver Kidney transplant; = (ii) Old operated bypass surgery cases (in which the initial operation was done abroad) needing revascularization; = (iii) Bone marrow transplant; = (iv) Operative correction for high myopia case; = (v) Complex cyanote Heart-Lesion and newly born infants suffering from heart diseases. = 5. Reimbursement of actual hospital expenses only in connection with treatment received abroad of the ailments mentioned in Para 4 may be permitted by the Administrative Department of the Government after obtaining prior concurrence of the Finance Department in relaxation of the rules provided the recognized referral hospital to which the ailing person was referred in accordance with the provisions contained in the relevant Medical Attendance Rules certifies that the treatment is not available in India and the certificate is endorsed by the Director, Medical and Health Services or the Principal of a Medical College. The question of reimbursement of travelling cost in such cases would not arise and all other expenses incidental to the treatment would also be borne by the government servant himself. The gist of the relevant circular referred by the State Govt. in reply to para 7 has been mentioned by the petitioner in the rejoinder as published in `lekhavigya' of February, 1995 is as under: " Where husband and wife both are in Government service the claim for reimbursement. . . shall be preferred by either husband or wife whoever is in receipt of higher salary. " A bare perusal of Rule 3 (1) (ix) of the Rules of 1970 which defines `family' makes it clear that family includes government servant's wife, husband, children wholly dependent upon the government servant but in the Note appended to Rule 3 (1) (ix) of the Rules of 1970 the condition of dependence both in the case of husband or wife of the government servant has been dispensed with provided the government servant has exercised an option, intimating the appointing authority that claims of medical reimbursement will be made to government for the spouse even though his/her spouse is employed elsewhere in a body having prescribed procedures for reimbursement of medical expenses. In the said rule, there is no mention of any higher or lower salary of the spouse and the option was exercised by the government servant i. e. the petitioner in respect of the medical reimbursement of her husband on 5. 4. 1995. Government has disputed the said option on the ground that it was not accompanied by the requisite document i. e. salary certificate of the husband of the petitioner which ought to be lower than the petitioner. Further submission of the counsel for the petitioner is that the circular published in "lekhavigya' of February, 1995 will not amend Rule 3 (1) (ix) of the Rules of 1970. Under Rule 5 (2) of the Rules of 1970 the salary issued is relevant only when husband and wife both are government servants whereas in the present case husband is not in government service therefore, said rule 5 (2) of the Rules of 1970 is not applicable. ;