Mithileshwar Kumar v. State of Bihar — 1999 DIGILAW 274 (PAT)

JUDGMENT A.K. GANGULY, J. This writ petition has been filed by Dr. Mithileshwar Kumar, who is a permanent employee in the Department a Health, Medical Education and Family Welfare Government of Bihar with a prayer for directing the state respondents to make payment of the expenses to be incurred on the treatment of his only son Master Harsh (hereinafter called the said child.) 2. Unfortunately the child is suffering from a very rare and at the same time a very serious disease known as osteoporosis with Hydrocephalus. The child is hardly three years old. After the child fell seriously ill, he was examined by a number of local physicians but as no improvement was seen, the child was taken by the petitioner to Dr. Lala Suraj Nandan Prasad, Ex head of Department of Pediatrics, Patna Medical College Hospital, Patna (hereinafter called the P.M.C.H).Dr. Prasad after treating the child referred the child for treatment to All India Institute of Medical Sciences, New Delhi (hereinafter called the AIIMS).Thereafter the child was admitted in the AIIMS for treatment. After the treatment of the child in AIMS, an advice certificate was give by Dr. Laxman Singh Arya, M.D., DCH, Additional Professor, Department of Pediatrics Oncology and Hematology, AIMS, New Delhi in which Dr. Arya advised that the only treatment possible for the child is one of Bone Marrow transplantation from a sibling donor. But the child being the only issue of the petitioner, the facility of the matched donor is not available in India and Dr. Arya advised that the child may go abroad. The search can be made through registry abroad kept in USA or U.K. As such Sri Arya advised the child to go abroad for unrelated matched bone marrow transplantation. Thereafter the petitioner got the child admitted in P.M.C.H. patna where the child was examined by Dr. Anil Kumar Sinha, Associate Professor, Children Hospital, P.M.C.H Patna on the advice of Mr. Sinha a Medical Board was constituted. The Medical Board examined the child on 15-5-1997 and recommended for his treatment at Tata Memorial Hospital, Bombay and thereafter an amount of Rs. 3500/- was sanctioned to the petitioner as an advance. The child was thereafter taken to Tata Memorial Hospital, Bombay were Dr. Sinha a Medical Board was constituted. The Medical Board examined the child on 15-5-1997 and recommended for his treatment at Tata Memorial Hospital, Bombay and thereafter an amount of Rs. 3500/- was sanctioned to the petitioner as an advance. The child was thereafter taken to Tata Memorial Hospital, Bombay were Dr. S.H. Advani, MD, FICP, FNAMS, Chief of the Department of Medical Oncology examined the child and gave an advice dated 4-6-1997 for contacting H.L.A. Registry at Memorial Hospital, New York for consideration of un-related matched ellogenic Bone Marrow Transplantation. Thereafter on the representation of the petitioner, the Department of Health, Medical Education and Family Welfare, Government of Bihar, Patna constituted a Medical Board which examined the child on 1-12-1997 and recommended the treatment of the child at Great Ormond Street Hospital for Children, N.H.S Trust. London. This recommendation was made by the Medical Board constituted by the State. In view of the aforesaid recommendation of the Medical Board, the petitioner made correspondences with the two hospitals, one in U.K. and other in U.S.A. and obtained copies of their advice. From the aforesaid advice which has been disclosed with the writ petition it appears that both the Hospitals have opined that treatment is possible but the same is costly. From the opinion give by the Great Ormond Street Hopital for children, NHS Trust. London it appears that the bone marrow transplantation is the only curative approach of correcting the deficient orthoclase function and the result of such bone marrow transplantation is well with 80% survival with osteoclast function. In cases of un-related matched donor the success is of 45% of cases. It has of course been opined by the said Hospital that such transplantation is a riskful intensive treatment which requires hospital admission for at least 2 or 3 months and as such the Hospital demanded a deposit of 120,000 U.K pounds. 3. The opinion of the other Hospital in U.S.A is also to the same effect and it appears that the Hospital at United States is carrying on such intensive bone marrow transplantation cases specially in respect of child and they have given the following facts: "At present we are reviewing 104 such transplants administered for children with severe combined immune deficiency.” This Hospital has also made it clear that the cost of such transplantation would be in the range of 20,000 U.S. Dollar. 4. 4. Therefore, the fact remains that the Medical Board has recommended the treatment of the child in a Hospital either at U.K. or U.S.A and the petitioner on contacting those hospitals came to know that the treatment is possible but the treatment is costly. It is also a fact that if no treatment is given to the child, the child will not survive and will die without any treatment. Despite the aforesaid opinion being made available by the petitioner, the necessary fund was not sanctioned to the petitioner. Hence the petitioner has filed this writ petition before this court. 5. In the counter affidavit which has been filed before this court, the respondents have not disputed the aforesaid facts but on the other hand the facts have been more or less admitted. It has been admitted that the child was referred to Tata Memorial Hospital, Bombay and thereafter the Medical Board constituted by the State Government referred the case of the child to the Great Ormond Street Hospital for Children, N.H.S. Trust,, London U.K. and it has also been stated that the petitioner submitted an estimate of £1,50,000 which was equivalent to Rs.80,52,000/ for the treatment of his son at London. The stand taken in the counter affidavit that the recommendation of the Medical Board set up by the respondents is not mandatory and the State Government has to taken a final decision in the light of prevailing rules, procedure and its financial position. It has been stated that under the Bihar Medical Attendance Rules (herein after called the said rules) which is applicable to the State Government employees and officers, there is provision for treatment in any foreign country at the cost of the state. It has also been stated that the State Government has taken a policy decision dated 9-6-1984 not to grant any facilities for medical treatment abroad at the cost of the State. The said decision was taken in the larger interest of the state mainly due to financial stringency. So the stand in the counter affidavit is that in the light of this policy decision date 9-6-1984, they are unable to grant any financial assistance to the petitioner for the treatment of his child abroad. The said decision was taken in the larger interest of the state mainly due to financial stringency. So the stand in the counter affidavit is that in the light of this policy decision date 9-6-1984, they are unable to grant any financial assistance to the petitioner for the treatment of his child abroad. They are relying on a judgment of the Division Bench of this court rendered in C.W.J.C No. 4096 of 1985 where the aforesaid policy decision was challenged and the said Division Bench held that the said policy decision is neither un-reasonable nor arbitrary. 6. In the writ petition the petitioner has stated that under rule 26 of the Rules which has been framed under proviso to Article 309 of the Constitution of India, there is a provision for enabling the State Government to grant concession relating to medical attendance and treatment which is not authorized by the original rule. Virtually rule 26 of the said rules provides for relaxation of the conditions of the said rules and the petitioner has referred the said rules for the purpose of claiming relaxation from the condition of the said rules but in the counter affidavit about the said relaxation of condition the stand taken is that due to financial stringency the State Government has taken a policy decision in 1984 not to grant any medical assistance abroad at the cost of the state. Such policy decision was upheld by the Division Bench of this Court. 7. From the rejoinder affidavit filed by the petitioner it appears that the petitioner has stated that the copy of the alleged policy decision of the State Government dated 9-6-1984 has not been disclosed. Apart from that it has been stated by the petitioner that the recommendation of the then Health Commissioner dated 6-1-1998 has been quoted and it appears from the said recommendation of the Health Commissioner that he has recommended for grant of financial assistance to the petitioner for treatment of his child abroad and the petitioner has quoted two instances of giving such financial help to one Mr. Shivnandan Paswan, Deputy Speaker, Bihar Assembly who was allowed to avail medical treatment in America at Government cost along with the cost of attendant in the year 1986 and another to Sri Nalini Ranjan Singh, Minister of Housing who was reimbursed for treatment at Paris in the year 1994. 8. Shivnandan Paswan, Deputy Speaker, Bihar Assembly who was allowed to avail medical treatment in America at Government cost along with the cost of attendant in the year 1986 and another to Sri Nalini Ranjan Singh, Minister of Housing who was reimbursed for treatment at Paris in the year 1994. 8. In the supplementary affidavit filed by the petitioner it has also been stated that the respondents are urging the case of financial crunch by way of justification to deny the petitioner's request but in 1997 a huge amount of Rs. three crore which was earmarked for the grant of medical assistance to the government employees surrendered by the State Government as the same could not be used for medical reimbursement. This fact has been stated in paragraph 4 of the supplementary affidavit filed by the petitioner in answer to the said allegation the stand taken by the state government in its affidavit dated 26-3-1999 is that the state government does not provide separate fund for medical reimbursement. The said amount is debited to the budget head from where the salary is drawn. It has been further stated that as far as the advance for medical treatment is concerned, the state government sanctions the amount temporarily under the Budget Head "8550 civil advance-104 other Advance Special Advance." It has been further stated that it is a public account head and the amount does not lapse and the expenditure is finally booked under the salary Head. In answer to the petitioner's case that permission for treatment abroad has been given to those two persons, namely, Sri Sheo Nandan Paswan and Sri Nalini Ranjan singh, the stand of the state government was that Shri Paswan was granted sanctioned advance for treatment abroad through various institutions in India. It has also been stated that as per available information the state Government has not reimbursed any amount pertaining to his treatment in any foreign country and the said Sri Paswan died in Batra Hospital, New Delhi on 15-11-1989 in course of his treatment 9. In so far as the statement regarding Sri Nalini Ranjan Singh, Ex. Minister is concerned, the stand taken by the state government is that while he was on foreign tour with the permission of the Government, he met with a severe car accident in Paris. He along with his wife was injured seriously. His son died there. In so far as the statement regarding Sri Nalini Ranjan Singh, Ex. Minister is concerned, the stand taken by the state government is that while he was on foreign tour with the permission of the Government, he met with a severe car accident in Paris. He along with his wife was injured seriously. His son died there. In such a situation the State Government had to reimburse the amount of treatment incurred in the foreign country in Paris. The state government had not granted him any permission to go to foreign country for his treatment. 10. From the aforesaid factual position, the following things emerge: (a)The child is suffering from a very rare disease and the said disease is a killer and if the child is not given proper treatment he is bound to die. It is just a matter of time. (b) The treatment for the said disease is available but the said treatment is not available in India as has been opined by the expert and not disputed by the respondents. (c) The treatment which is available for the disease is a costly one and the petitioner being a government servant is not in a position to bear the said cost. This is also not disputed by the respondents. (d) The petitioner is not as of right entitled to have the cost incurred for the treatment of his son reimbursed under the relevant rules. But under rule 26 of the concerned rules which has been amended in exercise of the power conferred under the proviso to Article 309 of the Constitution, the Government is authorized to grant to any person to whom these rules apply any concession relating to medical attendance or treatment which is not authorized by the rules. It is, therefore, clear that in suitable cases the government is authorized by virtue of this rule to exempt the conditions imposed under the said rule and grant any concession relating to medical attendance or treatment which is not otherwise authorized by the said rules. The Government is taking a stand that in view of the policy decision under an executive instruction dated 9-6-1984 concession is not granted to anyone under the aforesaid rule 26 of the Rules in view of the financial crunch to which the government is facing. The Government is taking a stand that in view of the policy decision under an executive instruction dated 9-6-1984 concession is not granted to anyone under the aforesaid rule 26 of the Rules in view of the financial crunch to which the government is facing. (e) It has not been disputed by the government factually that about three crores of rupees was surrendered in the financial year 1997-98 which was meant for utilizing for reimbursement of cost of treatment incurred by the government servants. (f) In support of the stand lake by the government, the respondents are relying very heavily on a Division Bench judgment of this court delivered in the case of Kameshwar Prasad Vs. The State of Bihar and others in C.W.J.C. No. 4096 of 1985. 11. Learned counselor the respondents submitted that as the said judgment in Kameshwar Prasad (supra) is delivered by a Division Bench, the same is binding on me and this court, on the strength of that judgment should dismiss this writ petition. 12. Since that judgment in Kameshwar Prasad (supra) is of considerable importance for deciding the controversy in this case, I propose to consider it in some detail. In that case, the petitioner, a Deputy Commissioner of Commercial Taxes, met with a jeep accident which resulted in the fracture of the shaft of his right femur. He was initially treated at P.M.C.H Patna but he was not fully cured. Thereafter the petitioner of that case was treated by a surgeon at Bombay. In spite of such treatment the acute pain of the knee joint of the petitioner subsisted as a result of which he could not walk beyond a short distance. Ultimately the Head of Orthopedic Surgery Department of the P.M.C.H, recommended the treatment of the petitioner in a foreign country like England and on that the petitioner wrote to the Health Department for sanction of his journey to England for the said purpose but the request was turned down on the plea the government has taken a policy decision not to permit treatment outside the country at the cost of the government. In connection with the said decision, rule 26, which is set out below came up for consideration. In connection with the said decision, rule 26, which is set out below came up for consideration. "Power of State Government to grant concession relating to Medical Attendance or treatment not authorized by these Rules-Nothing in these Rules shall be construed as preventing the state government for granting to any person to whom they apply any concession relating to Medical Attendance or treatment which is not authorized by Rules." 13. The learned judges of the Division Bench delivering the said judgment came to the finding that rule 26 of the State Government Medical Attendance Rules is in pari materia with rule 14 (ii) of the All India Services (Medical Attendance) Rules. The learned Judges of the Division Bench came to the conclusion that as a result of the aforesaid rule 26 of the rules, the State Government has been given "a free hand" in the matter of granting financial assistance to any person relating to Medical Attendance or treatment abroad and under the said provision in the past the State Government accorded sanction to some officers for treatment in the foreign countries but thereafter the State Government took a policy decision on 9-6-1984 not to grant any Medical facility abroad at the cost of the State. Factually the stand of the State Government in this case is also based on the said policy decision dated 9-6-1984. 14. In this connection it may be noted that despite the order of this Court dated 26-31999, learned counsel for the State respondents failed to produce before the Court the said so called policy decision. What was produced before the Court was only a note sheet from the file signed on 9-6-1984 by the then Chief Minister of Bihar declining the request for treatment in foreign country made by a learned Judge of this Court. However, it is not disputed that the said policy decision was on the basis of an executive instruction. Therefore, the question which arises in this case is whether the width of the power of concession granted to the state government under rule 26 of the rules framed in exercise of the power conferred under the proviso to Article 309 of the Constitution could be cut down, or modified on the basis of an executive instruction. 15. Therefore, the question which arises in this case is whether the width of the power of concession granted to the state government under rule 26 of the rules framed in exercise of the power conferred under the proviso to Article 309 of the Constitution could be cut down, or modified on the basis of an executive instruction. 15. This question was posed in paragraph 16 of the said judgment and in paragraph 16 it is argued by the learned counsel for the petitioner that this policy decision virtually obliterates rule 26 of the Rules and is, therefore, ultra vires the rules. It was argued that acceptance of the policy decision would amount to saying that these rules do not exist at all but the said argument was not upheld by the Division Bench. 16. With great respect at the learned Judges of the Division Bench, his Court is reluctantly compelled to conclude that at the matter was not considered by the Division Bench in its proper perspective and having regard to the law laid down by the Honble Supreme Court. 17. A rule framed under Article 309 of the Constitution must have full effect and can also have retrospective operation like legislation (See B.S. Vadera Vs. Union of India, AIR 1969 S.C 118 -a Constitution Bench Judgment of the Supreme Court). Such a rule has the force of law. It has been decided by the Supreme Court on many occasions before the said judgment was delivered on 14-7-1987 that the rules framed under Article 309 of the Constitution cannot be curtailed, modified or amended on the basis of administrative instruction/Circular. In this connection reference is made to the decision of the Supreme Court in the case of State of Haryana Vs. Shamsher Jung Shukla reported in A.I.R. 1972 S.C. page 1546. In paragraph 7 at page 1547 of the report, a Three Judge Bench of the Supreme Court has been pleased to hold" the Government is not competent to alter the rules framed under Article 309 of the Constitution by means of administrative instruction". 18. This question again cropped up subsequently before the Supreme Court in the case of S.L. Sachdeva Vs Union of India reported In A.I.R. 1981 S.C. page 411. 18. This question again cropped up subsequently before the Supreme Court in the case of S.L. Sachdeva Vs Union of India reported In A.I.R. 1981 S.C. page 411. In paragraph 13 at page 414-15 of the report the learned Judges of the Supreme Court held that "no one can issue a direction which in substance and effect amounts to amendment of the rules made under Article 309 of the Constitution. That is elementary." (Underlined for emphasis). 19. Again in another judgment in 1981 in the case of State of Maharashtra Vs. Chandra Kanta reported in A.I.R 1981 S.C page 1990 another Three Judge Bench of the Supreme Court at paragraph 14 at page 1996 of the report held "there can be no dispute with the proposition that a rule framed under the proviso to Article 309 of the Constitution cannot be modified by executive order." 20. Unfortunately this well settled legal position on the basis of these decisions were not brought to the notice of the learned judges delivering the said judgment. 21. It is no body's case and it was not held in the said judgment that the said administrative instruction was issued to fill up a gap in the rules framed under Article 309 of the Constitution. On the other hand the aforesaid administrative instruction, for all practical purposes, substantially curtails the scope for exercise of discretion which is given to the Government under Rule 26 of the said Rules, especially in the context of bearing costs for treatment abroad. The learned Judges of the Division Bench has held in paragraph 17 of the said judgment that the policy puts a ban on the grant of facility for treatment abroad'. The Division Bench has also upheld the policy even if it limits the concession which could be granted by the State Government under the rules. So the Division Bench upheld the so called policy introduced by an executive instruction even though it substantially nullifies the operation of rule 26 of the said Rules which has been framed in exercise of power under the proviso to Article 309 of the Constitution. The Judgment of the Division Bench is, therefore, given 'per incuriam' as it is clearly inconsistent with legal position laid down by the plethora of precedents of the Apex Court. The Judgment of the Division Bench is, therefore, given 'per incuriam' as it is clearly inconsistent with legal position laid down by the plethora of precedents of the Apex Court. In this connection I rely on the Constitution Bench judgment of the Supreme Court in the case of Punjab land Development and Reclamation Corporation Ltd. Chandigarh Vs. Presiding Officer. Labour Court Chandigarh and others reported in (1990)3 S.C.C page 682. I extract the following passage from paragraph 40, page 705 of the report:- "The Latin expression 'per incuriam' means through inadvertence, A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of its own or when a High Court has acted in ignorance of a decision of this court. 22. Whether that policy decision is arbitrary or discriminatory is a different question. But before that the Division Bench, if I may say so with utmost respect, should have held that the policy decision by way of executive instruction cannot either affect or amend Rules 26 of the said Rules. But as the Division Bench has given a contrary finding its judgment in Kameshwar Prasad (Supra) is given 'per incuriam' and is not binding on me and is not a binding precedent on this Court. In all probabilities the Division Bench would have followed the Supreme Court's judgment if its attention were drawn to them. 23. This Court has to come to this finding in view of the mandate of Article 141 of the Constitution which enjoins that the law declared by the' Hon'ble Supreme Court is binding on all Courts. 24. Reference in this connection may be made to another Division Bench judgment of Patna High Court in the case of Deepak and others Vs. State of Bihar and others reported in A.I.R. 1982 Patna page 126. In delivering the judgment of this Court, the Hon'ble Mr. Justice Sarwar Ali. Acting Chief Justice (as His Lordship then was), observed in paragraph 12 at page 129 of the said report as follows:- 'I am further of the view that the principles enunciated in the Supreme Court decision which have been mentioned earlier have not been considered in Dr. A.K. Mishra's case. (AIR 1981 Patna 164) and as such the Bench is not prevented from taking a view contrary to the view expressed in the said case. A.K. Mishra's case. (AIR 1981 Patna 164) and as such the Bench is not prevented from taking a view contrary to the view expressed in the said case. Had these Supreme Court decisions been considered and interpreted earlier by a Bench of this Court, we would have been bound by that interpretation and it would not have been open to us to give a different interpretation. Since, however, as already stated, the Supreme Court pronouncements, which are law of the land under Article 141 of the Constitution, have not been noticed in the earlier decision, the latter Bench is entitled to follow the Law as laid down by the Supreme Court and to apply them to the facts of the case under consideration." 25. Therefore, I proceed on the basis that rule 26 of the said Rules cannot be made dormant nor can it nullified by the administrative circular dated 9-6-1984. The case of the petitioner must be considered not on the basis of the administrative circular dated 9-6-1984 but under rule 26 of the said Rules. 26. Apart from that on reading Rule 26 of the said Rules, I find that the same was enacted with a purpose. The purpose being to relax the rigours of the rules in suitable cases by a proper exercise of discretion by the State Government. This is an, enabling provision. Such exemption clauses are quite common in rules which are meant for the welfare of the people. It is quite possible that rule making authorities do not envisage all kinds of situation and eventualities and, therefore enacts such an enabling provisions conferring discretion on high authorities to suitably relax the rig ours of the rule in appropriate cases. This is a very wholesome provision. It is well settled that a discretionary power is not necessarily a discriminatory power and an abuse of power is not easily to be assumed where the discretion is vested in the Government and not in a minor official (see Metajog Dubey Vs. H.C. Shari A.I.R. 1956 S.C page 44 at page 48). This dictum of the Constitution Bench of the Apex Court has been subsequently affirmed in 1974 by another Constitution Bench in the case of Narain Das Indurkhaya Vs. The State of Madhya Pradesh in A.I.R. 1974 page 1232 at page 1250. H.C. Shari A.I.R. 1956 S.C page 44 at page 48). This dictum of the Constitution Bench of the Apex Court has been subsequently affirmed in 1974 by another Constitution Bench in the case of Narain Das Indurkhaya Vs. The State of Madhya Pradesh in A.I.R. 1974 page 1232 at page 1250. So no fault can be found with the discretion vested on the State Government under rule 26 of the Rules. 27. Apart from that the said judgment has not considered the so called policy decision of the Government in the context of Article 21 under which one's right to get life saving treatment is recognized. 28. In this connection the observation of the Hon'ble Supreme Court in the case of Surijt Singh Vs . State of Punjab reported in (1996) 2 S.C.C. page 336 is very pertinent which is set out below:- "It is otherwise important to bear in mind that self preservation of one’s life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature. sacred, precious and inviolable. The importance and validity of the duty and right to self preservation has a species in the right of self defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognized it:' 29. Similar concerned has been expressed by the Supreme Court in another recent judgment in the case of State of Punjab and others Vs. Mohinder Singh Chawla and others reported in (1997) 2 S.C.C. Page 83. At page 85 of the report, the Apex Court observed as follows. "It is now settled law that right to health is integral to the right to life. Government has constitutional obligation to provide health facilities. If the government servant has suffered an ailment which requires treatment at a specialized approved hospital and on reference whereat the Government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee. The High Court was therefore, right in giving direction to reimburse the expenses incurred towards room rent by the respondent during his stay in the hospital as an in-patent." 30. In another recent judgment of the Apex Court in the case of State of Punjab & others Vs. The High Court was therefore, right in giving direction to reimburse the expenses incurred towards room rent by the respondent during his stay in the hospital as an in-patent." 30. In another recent judgment of the Apex Court in the case of State of Punjab & others Vs. Ram Lubhaya Bagga reported in A.I.R. 1998 S.C. page 1703, the question of government altering its policy on reimbursement of expenses incurred for undergoing treatment came up for consideration . The court held financial stringency can lead the Government to change its policy from time to time. But such change of policy must be consistent with Article 21. The Court further held that it should not interfere with such change of policy of the Government as various facts are to be considered which are beyond the ken of the Court. The changed policy which was upheld by the court contained the following provision for ‘treatment abroad' and it is quoted below. "TREATMENT ABROAD" The treatment of a disease in a country abroad would be permitted in extremely rare cases where satisfactory treatment is not available in the country. Such treatment and follow up should be recommended by the State Medical Board. Prior approval of the State Medical Board shall be a pre-requisite in such cases. All efforts should be made by the concerned employee/pensioner to take prior approval of the State Medical Board 31. The Court further held that provisions for fixing the claim of reimbursement at the rates prevalent at AIIMS is not to depend on the sweet will of the Director and it is to be done by a Committee of technical experts (paragraph 28 of the judgment). 32. Even after upholding the new policy, the learned Judge, without creating any precedent, allowed the respondents claim for being paid the difference between the rates of AIMS and that of Escorts Hospital (paragraph 39 of the judgment). 33. The Apex Court however, held that no State can have unlimited resources to spend on medical facilities to its citizens. It has to be to the extent the finance permits. (Paragraph 29 of the judgment). 34. But the questions involved here are different. Here the provisions for granting concessions to the general rule have been made under a rule framed under proviso to Article 309 of the Constitution. It has to be to the extent the finance permits. (Paragraph 29 of the judgment). 34. But the questions involved here are different. Here the provisions for granting concessions to the general rule have been made under a rule framed under proviso to Article 309 of the Constitution. But the same has been nullified by the administrative instruction and unfortunately the State is asserting that it will not consider the petitioner's claim under Rule 26 of the rules but will reject it under the said administrative decision. This is not permissible for the reasons pointed out above. 35. Though the said administrative decision has not been produced here by the State but this court finds that the same was analysed in the said Division Janet as to be based on two reasons (paragraph 10 (If the judgment). They are (i) financial stringency and (ii) development of medical treatment in the country. Both these reasons are absent in this case. It has been opined by all experts including the State Medical Board that no treatment of the child's disease is possible in India. This is not disputed even by the State counsel. About financial stringency, it has been brought on record that the Government surrendered abourt 3 crores, of rupees in 1997-98 out of the funds meant for reimbursing the medical expenses of the Government servant. 36. Under these fact and circumstances of this case the court has to take its decision. The Court has given very anxious consideration to various aspects of the matter. 37. Can the Court fold its hands and leave the child to sink into laws of death by upholding the pleas of the State? Can the Court hold that State is under no obligation to act as a Welfare State and give the child the treatment it needs so badly? 38. Every child is a potential asset to the State. The concern for a child's health has been voiced in so many articles of the Constitution. Article 24 under Part III is one of them. Under Part IV of the Constitution, similar concern is expressed in Articles 39 (e) and 39 (f) and 47 of the Constitution. This Court cannot and must not forget that we live in a welfare State and the Union of States is a socialist republic and controlled by Constitution which is replete with profound concern for the weaker section. 39. Under Part IV of the Constitution, similar concern is expressed in Articles 39 (e) and 39 (f) and 47 of the Constitution. This Court cannot and must not forget that we live in a welfare State and the Union of States is a socialist republic and controlled by Constitution which is replete with profound concern for the weaker section. 39. It cannot be doubted that the degree of the civilized order of a State is judged mainly by the manner it treats its children and the women. A State today is not judged merely because of its achievement in its industrial or commercial ventures or for its growing strength as a nuclear power but it is judged by the provision it makes for the vulnerable and weaker sections of the society. 40. With these considerations weighing on the conscience of this Court, it has to do Justice to the case. And what is justice? it is the constant and perpetual wish to render everyone his due" (see AIR 1991 SC page 435 at page 440). 41. In the facts of this case the Court holds that a right to treatment is due to this child. The State is also not disputing it. The only hurdle is the cost of treatment. 42. Therefore, this is the most appropriate case for considering the petitioner's prayer for financial help under the provisions of Rule 26 of the said rules. 43. In this case the respondents are suffering from the misconception, unfortunately for the said judgment of the Division Bench, that it is the said policy decision which superimposes Rule 26 and governs the field. But it is not so. Therefore, the respondents are not exercising their discretion vested in them under Rule 26 when there is an appropriate case to exercise that discretion. So a mandamus can issue to compel the respondents to exercise that discretion vested in them. In view of the said provision under Rule 26 the so called policy decision dated 9-6-1984 cannot for the reasons stated above operate to whittle down the effect of the said rule 26. 44. The last point urged by the respondents' counsel is whether a mandamus can be issued directing the State Government to consider the petitioner's case for granting concession under the said rule. 45. A too rigid and traditional concept of mandamus has been given a go bye long ago. 44. The last point urged by the respondents' counsel is whether a mandamus can be issued directing the State Government to consider the petitioner's case for granting concession under the said rule. 45. A too rigid and traditional concept of mandamus has been given a go bye long ago. In the first series of Hamlyn lectures delivered in 1949, Lord Denning in "freedom under the Law" said:- "Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure for mandamus certiorari, and actions on the case are not suitable for the winning of freedom in the new age." 46. Taking the cue from these inimitable words the Apex Court has minimized the traditional rig ours of mandamus. In Shri Anadi Mukta Sadguru's case, (A.I.R 1989 S.C. page 1607) the Hon'ble Supreme Court noted in paragraph 15, at page 1611 of the report that" the law relating to mandamus has made the most spectacular advance. 'Tracing the growth of the law relating to mandamus, the learned Judges at para 21, page 1613. summed up the law as follows:- "Here again we may point out that mandamus cannot be denied on the ground that the duty to be enforced is not imposed by the statute. Commenting on the development of this law, Professor De Smit states. "To be enforceable by mandamus a public duty does not necessarily have to be one imposed by statute. It may be sufficient for the duty to have been imposed by charter, common law, custom or even contract."(Judicial Review of Administrative Act 4th Ed. p. 540) we share this view. The judicial control over the fast expanding maze of bodies affecting the rights of the people should not be put into water tight compartment. It should remain flexible to meet the requirements of variable circumstances. Mandamus is a very wide remedy which must be easily available to reach injustice wherever it is found, Technicalities should not come in the way of granting that relief under Article 226. We therefore, reject the contention urged for the appellants on the maintainability of the writ petition." (Underline for emphasis) 47. In view of this legal position, the aforesaid technical objection is over ruled. 48. We therefore, reject the contention urged for the appellants on the maintainability of the writ petition." (Underline for emphasis) 47. In view of this legal position, the aforesaid technical objection is over ruled. 48. Time is fast running out for the child, The State Government therefore, must act with utmost expedition in the matter in accordance with the direction given below: (i) The Health Commissioner on consideration of the petitioner's prayer has already by his note dated 6-1-1998 recommended to the Health Minister for giving the necessary fund to the petitioner for treatment of the child. The said note has been disclosed by the petitioner in the rejoinder affidavit filed by him. (ii) So the State Government must act under Rule 26 of the said Rules in the exercise of the discretion vested on it to give effect to the recommendation of the Health' Commissioner and in the light of the observations made in this judgment. The State Government cannot, in view of the Rule 26 of the said Rules, act on the basis of its policy decision dated 9-6-1984. (iii) Such decision must be taken by the State Government as early as possible but definitely not later than 23rd April, 1999. In order to facilitate an early decision, a copy of the judgment must be made available to the learned State Counsel by tomorrow by the Registry of the Court. A copy of the judgment be similarly made available to the learned lawyer for the petitioner so that the petitioner may appeal for financial help to other authorities by making an appeal to The Prime Minister's Relief Fund and any other philanthropic organization so that the treatment can be made available to the child. (iv) If such an appeal is made, this Court hopes and trust that such organization will act promptly within a month of such appeal and with a spirit of benevolence so that the child receives the treatment. 49. This Court expresses a fond hope that the 'milk of human kindness' has not as yet gone dry in the great country and the child will receive the necessary financial help for his treatment. This is really a case in which 'mercy seasons justice'. 50. With these directions and a fond hope, this Court disposes of this writ petition. No cost.