MAHESHWARI, J. - (1.) BY way of this writ petition, while putting a challenge to the phraseology of Rule 7 (1) of the Rajasthan Civil Services (Medical Attendance) Rules, 1970 ('the Rules of 1970'), the petitioner has prayed for quashing of the communication dated 25. 06. 2001 (Annex. 9) and directions to the respondents to make payment of the expenditure incurred by him for bypass surgery at Escorts Heart Institute, New Delhi (hereinafter also referred to as 'escorts' for short ).
(2.) WHILE pointing out that he entered the services of Government of Rajasthan in the Department of Revenue as LDC in the year 1968, was promoted to the post of UDC, and is working on such a post in the Collectorate at Banswara, the petitioner has averred that he suffered heart attack in the month of September 1999 and after primary treatment at Banswara, he was referred to and was treated at RNT Medical College Hospital, Udaipur; that after treatment at Udaipur for some time, he was referred for investigation and treatment to SMS Hospital, Jaipur (hereinafter also referred to as 'sms' for short) under the communication dated 15. 06. 2000 (Annex. 1); that he went to Jaipur and contacted Dr. R. K. Madhok, Professor and Head, Department of Cardiology, SMS Medical College, Jaipur; that he was admitted at SMS and thereafter angiography was conducted on 12. 07. 2000 in which two blockages in coronary artery were discovered and he was advised Coronary Artery Bypass Surgery (CABG ). The petitioner has alleged that due to improper angiography, a clot developed in his right femoral artery and he was also not satisfied with the result of angiography and, therefore, expressed that he would like to have his examination and treatment at Escorts Heart Institute, New Delhi. According to the petitioner, he was told that reference to Escorts could be made only upon giving in writing his desire for such reference on account of his family circumstances and he shall have to further admit in writing to claim only the expenses that would be incurred in the event of his treatment at Jaipur. The petitioner has alleged that looking to the situation he was in, he had no option and submitted the application dated 18. 07. 2000 (Annex. 3) to the said Dr. R. K. Madhok for reference to the Escorts Heart Institute, New Delhi but stated that he was making such application with reference to the angiography report dated 12. 07. 2000. The petitioner has pointed out that an order dated 20. 07. 2000 (Annex. 4) was issued recommending his case to the Escorts Heart Institute but in the said order it was specified that the facilities being available at SMS, financial entitlement would be that of SMS Hospital, i. e. , Rs. 50,000/- only. According to the petitioner, upon his visiting Escorts Heart Institute when he was again subjected to angiography on 01. 08. 2000, his apprehension came true because in such angiography, three blockages in coronary artery were found; and then, he was treated for the clot that had developed during the course of angiography at Jaipur; and, on the basis of angiography at Escorts, he was subjected to three coronary artery bypass grafting and was discharged from the Hospital on 14. 08. 2000 (Discharge Summary Annexure-5 ). According to the petitioner, the Escorts Heart Institute, New Delhi raised a bill of Rs. 2,10,400/- but on his request, while granting subsidy of Rs. 45,400/-, charged an amount of Rs. 1,65,000/- (Bill Annexure-6 ). The petitioner has pointed out that after complete recovery, he submitted a representation to the Principal Secretary, Department of Finance, Government of Rajasthan, Jaipur on 25. 11. 2000 (Annex. 7) through the Collector, Banswara making a request for payment of the remaining amount of Rs. 1,15,000/- in addition to Rs. 50,000/- paid to him to meet the expenditure incurred in connection with his bypass surgery at New Delhi; that the District Collector recommended his case for grant of medical reimbursement to the tune of Rs. 1,65,000/- on 12. 04. 2001 (Annex. 8); but, under the impugned communication dated 25. 06. 2001 (Annex. 9), his case for grant of medical reimbursement to the tune of Rs. 1,65,000/- has been turned down. The petitioner has averred that the grant of medical reimbursement to the employees of the State Government is governed by the Rules of 1970; that Rule 7 thereof provides for treatment of a disease for which treatment is not available in the State; and that Escorts has been notified as one of the referral Hospitals under sub-rule (3) of Rule 7 of the Rules of 1970. The petitioner has further submitted that the expression ''a disease for which treatment is not available in any Government Hospital in the State'', as mentioned in Rule 7 (1) of the Rules of 1970 should be treated to mean that the disease is the one for which proper treatment is not available; and has contended that in respect of open heart surgery, 'proper' treatment facility is not available in the State of Rajasthan.
(3.) ACCORDING to the petitioner, the action of the respondents in rejecting his application for grant of medical reimbursement in respect of expenditure incurred by him in relation to the open heart surgery at Escorts Heart Institute, New Delhi is illegal because under Rule 7 of the Rules of 1970, a Government servant who is suffering from a disease for which treatment is not available in any Government Hospital in the State is entitled to reimbursement of the expenditure incurred by him provided that he has undertaken treatment at the Hospital or Institute mentioned in Appendix 11. Further, according to the petitioner, it shall be deemed that he was suffering from the disease for which he could not have been treated in Government Hospital in the State because at SMS neither angiography was conducted properly nor diagnosis was correct; that he suffered clot in the right femoral artery on account of improper angiography conducted at SMS; that in the angiography conducted at SMS, two blockages in coronary artery were stated whereas upon his examination at Escorts, it was revealed that result of angiography conducted at SMS was not correct inasmuch as he was suffering from three blockages. According to the petitioner, had he been operated at Jaipur, one blockage would have gone untreated and could have had disastrous consequences. The petitioner maintains that upon apprehension of not receiving proper treatment at SMS, Jaipur, he had asked for examination at Escorts Heart Institute that is available in the country and is the approved one too; that it was his right of self-preservation and he was entitled to exercise such right by virtue of Article 21 of the Constitution of India and having been treated at one of the notified institutions under Rule 7 (3) of the Rules of 1970, he could not be denied reimbursement of the expenditure incurred by him in the said Institute. In relation to his undertaking in writing, the petitioner has averred that at the relevant time, he was suffering from acute heart problem and had serious doubts about the medical facilities available in Rajasthan; that he could not have put his life into peril by getting operated at Jaipur; and that in the circumstances, his undertaking being not of free will but obtained under duress, remains unconscionable and of no adverse effect. Similarly, according to the petitioner, the condition as imposed in the order dated 20. 07. 2000 remains illegal, arbitrary and unreasonable. ;