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2007 DIGILAW 562 (RAJ)

Nand Lal Singhal v. State of Rajasthan

2007-03-14

GOPAL KRISHAN VYAS

body2007
Judgment Gopal Krishan Vyas, J.—The petitioner herein is a freedom figher. He was honoured with “Tamrapatra” for his participation in the struggle for the independence of the country. He has also been given pension payable to the freedom fighters. 2. In this petition, the petitioner has prayed that the respondent State be directed to reimburse the expenses incurred by the petitioner in taking treatment from private doctor and in private hospital. It is contended in the writ petition by the petitioner that according to rules he is entitled to get reimbursement of all the medical expenditure incurred by him and his wife irrespective of the fact whether treatment is taken in a Government hospital or private hospital. However, vide communication dt. 19.07.2003 (Annex.-1 to the writ petition) respondent No. 2 District Collector, Jodhpur enquired of the petitioner upon certain questions set out therein. The petitioner represented before the Collector vide Annex.-2 but, later on, on the basis of order of the Government issued by the Asstt. Secretary, GAD (Group VI) dt. 20.09.2003 it was informed to the petitioner by respondent No. 2 that freedom fighters are not entitled to reimbursement for medical treatment taken in a private hospital. Order Annex.-3 runs as under: ßmijksä fo"k;kUrxZr funsZÓkkuqlkj ys[k gS fd LorU=rk lsukfu;ksa }kjk izLrqr fpfdRlk nkos mlh fpfdRld ls izekf.kr gksus pkfg, ftlls bZykt djok;k x;k gksA tks/kiqj ftys esa fdlh Hkh futh fpfdRlky; dks LorU=rk lsukfu;ksa ds mipkj gsrq izkf/kd`r ugha fd;k x;k gSAÞ 3. It is contended by learned counsel for the petitioner that as per order dt. 07.02.2004 passed by the GAD, Government of Rajasthan, addressed to the Collectors and Treasury Officers, purporting to be in the subject-matter of reimbursement of medical expenses incurred by freedom fighters it has been said that there is provision of reimbursement of medical expenses to the freedom fighter only upto maximum extent of Rs. 10,000/- as detailed therein. It is further stated that no reimbursement is allowed for treatment taken in private hospital. Against these orders, the petitioner made represented but no reply was given by the respondents. 4. It is contended by learned counsel for the petitioner that communications dt. 10,000/- as detailed therein. It is further stated that no reimbursement is allowed for treatment taken in private hospital. Against these orders, the petitioner made represented but no reply was given by the respondents. 4. It is contended by learned counsel for the petitioner that communications dt. 20.09.2003 and 07.02.2004 are totally unwarranted, the respondents can only check the veracity of the documents and bills but, under the rules, they cannot impose such condition that treatment can only be taken in Government hospital or from a Government doctor only. Learned counsel for the petitioner invited my attention towards the provisions of Rajasthan Swatantrata Senani Samman Pension Rules, 1959 (for short, “the Rules” hearinafter) and submitted that there is no such provision in the rules that reimbursement is only available in case the freedom fighter or his wife gets treatment in a Government hospital or by a Government doctor, therefore, such restriction as imposed by the State authorities in the impugned orders is arbitrary and without jurisdiction. Learned counsel for the petitioner contended that when there is so such restriction imposed in the Rules itself, the authorities cannot arbitrarily lay down conditions for reimbursement of the medical expenses incurred for treatment by the freedom fighter or his wife. 5. The respondents have filed reply to the writ petition contending that cirucular dt. 07.02.2004 has rightly been passed and answering respondents have followed the same. So far as position of rules is concerned, the respondents have not attempted to resolve the issue on the anvil of the rules and merely stated in the reply as under: “B- That the averments contained in ground “B” of the Writ Petition factually and legally untenable hence denied. It is State Government propagating in policy decision has been rightly issued the circular. C- That the averments contained in Para “C” of the Writ Petition illusory and bereft of any factual and legal matrix, hence denied. The order dt. 07.02.2004 has been rightly passed and their being no arbitrariness, unfairness and unreasonableness and the same has been applied uniformly. The question with regard to non payment of medical aid to the pertinent with respect to private doctors and Government hospital their remains pious, sanctity of their function. The money is admissible to petitioner as a welfare act and the same cannot be claimed as luxurious aid.” 6. The respondents have placed on record Annex.-R/1 dt. The question with regard to non payment of medical aid to the pertinent with respect to private doctors and Government hospital their remains pious, sanctity of their function. The money is admissible to petitioner as a welfare act and the same cannot be claimed as luxurious aid.” 6. The respondents have placed on record Annex.-R/1 dt. 12.10.1999 with their reply. Vide notification Annex.-R/1 the State Government brought about amendment in the Rules. The relevant protion thereof is quoted hereunder : ß2&fue 7 (1) ?k) ds uhps fn;s x;s ijUrqd ds uhps fn;s x;s f}rh; ijUrqd esa LorU=rk lSukfu;ksa dks :i;s 300@& izfrekg fpfdRlk HkÙks ds :i esa fnukad 01-10-1999 ls fn;k tkosxk ,oa fpfdRlk jkfÓk vf/kd gksus ij :i;s 10]000@& okf"kZd rd ,d foÙkh; o"kZ esa iquHkj.k fd;k tkosxkAÞ 7. I have given my thoughtful consideration to the pleadings of the parties as well as provisions of the Rules.8. Prior to aforequoted amendment, Rule 7 (1)(d), second proviso, read as under : ßijUrq ;g vkSj fd fdlh LorU=rk lSukuh dks foÙkh; o"kZ (1 vizsy ls 31 ekpZ) Hkj esa fpfdRlk gsrq fn;s tkus okys vuqnku dh jkfÓk 2]000@& : ls vf/kd ugha gksxhAÞ It is obvious from the provisions of the rules that allowance of Rs.300/- is admissible to a freedom fighter, irrespective of how the treatment is taken and, in the event of medical expenditure exceeding the amount allowed, reimbursement upto Rs. 10,000/- in a financial year is allowed. The rule does not say anything as to how the treatment is to be taken and, in fact, it provides the grant of Rs. 300/- per month as medical allowance and reimbursement, in the event of the amount exceeding the amount of the monthly allowance, is permissible under the rules upto Rs. 10,000/- in a financial year and, in that case also, the rule does not specify any condition precedent for reimbursement with regard to how the treatment has been taken. The only limitation specified in the rule is with regard to the maximum amount upto which, in a financial year, such reimbursement may be claimed. 9. It is contended by the counsel for the State that there is administrative instructions and State policy and, therefore, circular dt. 07.02.2004 clarifies the position with regard to claim for reimbursement. The only limitation specified in the rule is with regard to the maximum amount upto which, in a financial year, such reimbursement may be claimed. 9. It is contended by the counsel for the State that there is administrative instructions and State policy and, therefore, circular dt. 07.02.2004 clarifies the position with regard to claim for reimbursement. There is no force in the contention of the learned counsel for the State inasmuch as administrative instructions cannot over-ride the rules promulgated by the State and having once made provision for reimbursement, by administrative instructions, the provision of the rule cannot be hemmed in by laying down conditions which do not find mention in the rule or, which cannot be deduced either from the intention of enatchment of the legislation or by any stretch of reasonable interpretation of the language of the rule. 10.From the preamble of the Rules also, it is obvious that the rules have been promulgated by way of welfare legislation and aid is sought to be provided within the limited resources of the State. It is therefore understandable that the State has provided for reimbursement upto a maximum limit of Rs. 10,000/- in one financial year; but, with regard to nature of the treatment as to how the medical treatment is obtained, the rule is silent. Obviously, it can reasonably be construed to mean that it is left to the choice and convenience of the freedom fighter, in the event of ailment, to get treatment in any manner without suffering hardships encountered at the State owned instrumentalities. It is further clear from the nature of the reimbursement which is grant in aid. 11.When there is no restriction imposed, expressly or by necessary implication, obviously the petitioner-a freedom fighter is entitled to the benefit of reimbursement as provided in the Rules even though treatment has been taken in a private hospital or by a private doctor. Of course, genuineness of the medical prescription and bills can be scanned by the respondents and the State is within its rights to examine the authenticity of the claim but, unless the Rule itself so provides, the respondents cannot deny the reimbursement on grounds which are not available under the rules. The impugned action is arbitrary and denial of reimbursement is based on exercise of jurisdiction not vested in the respondent authorities. In the circumstances, the writ petition deserves to be allowed. The impugned action is arbitrary and denial of reimbursement is based on exercise of jurisdiction not vested in the respondent authorities. In the circumstances, the writ petition deserves to be allowed. 12.Consequently, the writ petition is allowed. The respondents are directed to provide reimbursement, upto the extent provided in the rules, to all freedom fighters of the State in respect of the treatment obtained by them from a registered medical practitioner, either in Government hospital or a private hospital. However, such claims for reimbursement may be examined for verification as to authenticity of the claim. It is further directed that the State Government shall ensure that such claims shall be decided expeditiously, preferably within one month from the date of filing of the claim. No order as to costs.