R. S. VERMA, J. - (1.) THE facts in this case are not very much in dispute. THE petitioner is a member of the Rajasthan Higher Judicial Service and is currently working as Special Judge (CBI Cases), Jodhpur. He is suffering from aortic regurgitation, coronary artery disease, reheumatoid mild hypertension, ankylosing spondylitis, effort breathlessness-Gr. I and emotional angina. As back as 1983, he was referred to Bombay Hospital, Bombay for treatment of his ailments and since then, he has been periodically visiting the said hospital for check up and consultation. Rajasthan Civil Services (Medical Attendance) Rules, 1970, hereinafter called 'the Rules', regulate the reimbursement of expenses incurred in connection with the treatment of an employee of the State and apply to the petitioner. Rule 7 of the Rules provides for treatment of a disease for which treatment is not available in the State. THE rule, inter alia, provides the procedure for obtaining such treatment and also provides what charges/expenses shall be reimbursable. In terms, the rules does not speak of treatment abroad but by virtue of Rule 12, the Government has been relaxing the provisions of rule 7 and has been permitting its officers to go abroad for treatment. It has been reimbursing these officers of the charges/expenses incurred in connection with such treatment to certain extent. Advances were also made in connection with such treatment. Following officers were permitted to avail of such facility in the recent past. (1) Shri A. K. Bhargava, Additional Chief Engineer, P. H. E. D. (2) Shri Gopesh Bhatta, I. A. S. (3) Shri B. P. Bhargava, I. A. S. (4) Shri O. P. Bhargava, R. A. S. (5) Shri Dardi, Executive Engineer, P. H. E. D. and Doctors. (6) Shri S. C. Mathur, & (7) Shri A. B. L. Mathur.
(2.) THE case of the petitioner is that his ailments have been aggravated recently and hence the Registrar, Rajasthan High Court recommended his case, to the Govt. of Rajasthan, for open heart surgery in Houston (U. S. A.) vide Annex. I. In this connection, the petitioner was examined by a Medical Board constituted by the Principal and Controller, Dr. Sampurnanand Medical College and allied hospitals vide Annex. 4. THE Board gave its report Annex. 5, recommending the petitioner for surgery abroad. On the basis of this report, the said Principal also recommended the petitioner for surgery abroad vide Annex. 6. In this very connection, the Deputy Secretary to the Govt. in Law & Legal Affairs Department of the State desired the petitioner to send some further information and material and also asked him to provide a report from the Principal, S. M. S. College, Jaipur. Dr. S, R. Mehta, Principal, S. M. S. Medical College, Jaipur issued his certificate Annex. 8 on 29. 12. 1988 in this regard, recommending valve replacement, coronary angiography and Bypass surgery. THE case of the petitioner was, then, processed in the government. It may, here, be stated that at no time during such processing, the reports of the Medical Board or of the Principals Dr. Sampurnanand Medical College, Jodhpur and S. M. S. College, Jaipur were questioned or doubted. Eventually, the govt. by its order Annex. 9 informed the Registrar, Rajasthan High Court that the Govt. has taken a decision that if a govt. servant wants treatment abroad for better facilities, or better patient care/after operation care, he may do so at his own expenses and the Govt. may consider reimbursement only to the extent of actual hospital expenses which would have been (incurred) if the treatment was (taken) within India. Thus practically, the request of the petitioner for treatment abroad at govt. expenses was turned down. The petitioner complains of hostile, discriminatory treatment by the govt. and it is contended on his behalf that when similarly situated officers were reimbursed for their treatment abroad, his case standing on an equal footing, the govt. could not have treated him differently and may be directed to make available a sum of 11,500 Ponds, necessary to enable him to have his open heart surgery in U. S A. Here, it may be pointed out that this amount was claimed on the basis that in the past Shri A. K. Bhargava was allowed to take treatment in U. S. A. though, was reimbursed the amount as if he had taken the treatment at U. K. The stand of the Govt. which has resisted the writ petition with particular zeal, is that the petitioner has no vested right to take treatment abroad. Rule 7 of the Rules does not confer any such right upon him and as such no mandamus can be issued. Grant of relaxation was a matter of pure discretion and subjective satisfaction of the Govt. and action based on such subjective satisfaction could not be a basis for issuance of a writ of mandamus. It was next pleaded that there was no hostile discrimination as alleged and the cases of the various officers referred to above stood differently. All of them had taken coronary angiography test while the petitioner had not taken such test. At any rate, since the medical facilities had developed in the country, the petitioner could very well take the treatment in the country itself at any of the recognized hospitals. It was also pleaded that the petitioner had failed to make out a case for relaxation of the Rules. It was ultimately averred that Govt. by its decision Annex. R/4 had laid down fresh guidelines and since the case of the petitioner was not covered by such guidelines, the govt. was right in refusing the request of the petitioner. It may, here, be stated that during the course of the hearing of the present writ petition, an application was moved on behalf of the respondent under Art. 226 of the Constitution read with s. 151 C. P. C. whereby a stand was taken that the opinions placed before the govt. regarding the ailment of the petitioner were not consistent and convincing and hence the case of the petitioner may be referred to All India Institute of Medical Science, New Delhi and its Director may be asked to constitute a Medical Board consisting of one specialised Cardiologist and a highly qualified Thoracic and Cardiovascular Surgeon to give its opinion in the matter of the petitioner. This application was opposed by the petitioner on the ground that at no stage of the processing of the case of the petitioner by the govt. , doubt or suspicion was entertained regarding the genuineness of the various reports of the Medical experts; this application was a device to prolong the matter and create a new ground of defence, which was never spelled out till the passing of order Annex. 9. Such a course was not permissible and should not be allowed to delay and defeat this petition. We have heard the learned counsel on either side and have perused the pleadings of the parties as also the record made available to us. We have also carefully considered the rival contentions.
(3.) WE may state at the outset of this discussion that the Rules have been promulgated by the Governor of Rajasthan in exercise of his rule making power conferred by proviso to Art. 309 of the Constitution of India. Thus, these Rules are statutory in nature. Relaxation to be granted in favour of the petitioner, as in case of other officers in the past, was to be made/declined by the govt. in exercise' of its statutory power, vested in ii by Rule 12, which reads as under: - "12. Savings.- Nothing in these rules shall be deemed to : (1) entitle a government servant to reimbursement of any cost incurred in respect of medical services obtained by him or to travelling for any journey performed by him otherwise than as expressly provided in these rules; or (2) prevent the government from granting to a Government servant any concession relating to medical treatment or attendance or travelling allowance for any journey performed by him which is not authorised by these rules. " Precisely, it is clause (2) of this rule, which enables the govt. to permit its officers to go abroad for treatment. At one stage of his arguments, learned Addl. Advocate General tried to contend that actually in past in the cases referred to above, various officers named in para 1 of this judgment, were granted concession of treatment abroad in violation of the rules, but he abandoned the stand, and we think, rightly so, in view of the aforesaid clause (2) of Rule 12, and further in view of the specific plea of the "govt. in para 10 of its reply to the writ petition, which may be reproduced. It reads: - "although the Rules of 1970 do not provide for referring the case for treatment abroad, but if the State Government in its opinion in suitable and exceptional cases recommend some cases in relaxation of the Rules of 1970, in that case no government servant can claim relaxation of rules in his favour as of right. " The aforesaid plea makes it abundantly clear that the learned Addl. Advocate General was not right, when he tried to contend that previously the officers had been granted facility for treatment abroad in violation of rules. The true position, as we see, is that in past cases, the relaxation was made by the govt. in exercise of its statutory powers, vested in it by clause (2) of the said Rule 12. Now, we may turn to Annex. 9 by which the request of the petitioner for facility of treatment abroad was declined. We may reproduce relevant portion of this document. It reads as follows: - "i am directed to inform on the subject that the Government has taken a decision that if a Government Servant wants treatment abroad for better facilities, or better patient care/after operation care, he may do so at his own expenses and the Government may consider reimbursement only to the extent of actual Hospital expenses which would have been if the treatment was within India, Further action may therefore, be taken accordingly. Now this document does not, in any way doubt the genuineness of the ailment or severity thereof. It merely refers to a decision of the govt. that "if a Government Servant wants treatment abroad for better facilities, or better patient care/after operation care, he may do so at his own expenses and the Government may consider reimbursement only to the extent of actual Hospital expenses which would have been if the treatment was within India. " No such decision passed prior to 28. 1. 89, when Annex. 9 was passed, has been placed on record except Annex. R/2 dated 22. 3. 85. We may extract para (2) of this Circular, which alone is relevant for our purposes. It reads as under: " (2) In such cases where adequate facilities for a particular disease is not available in the State but is available in the Country, even then a Government Servant choses to go for abroad for treatment in those cases, reimbursement should only be made on an equal amount that would have been incurred for equivalent treatment in any of the recognised institutions in India where reasonable facilities exist. " It may readily be observed that Sarva Shri A. K. Bhargava, Gopesh Bhatta, B. P. Bhargava, O. P. Bhargava, D. S. Dardi and S. C. Mathur were permitted to avail the facility of treatment abroad inspite of para (2) of the Circular Annex. R/2. Hence, whatever riders had been placed regarding treatment abroad, where treatment was available in the country also, were also relaxed in the cases of the said officers. Hence, reference to an unspecified govt. decision in Annex. 9 could be of no avail. ;