JUDGMENT : 1.Heard. 2.Being aggrieved by partial reimbursement of Medical Expenses meted out by thepetitioner for Coronary Artery By-Pass Surgery underwent at Escorts Hearts Hospital , New Delhi , present petition isfiled seeking direction to respondents to make good the difference of amountpaid and the amount reimbursed. 3.The petitioner an employee of School Education Department, Government of M.P.was detected of Coronary Heart Disease in May, 2004. He was treated at Government MGM College , Indore ,whereupon he was referred to Escorts Heart Hospital , New Delhi for Coronary Angiography and further treatment.The petitioner on the basis of referral certificate applied for permission fromthe Director, Public Instruction for treatment at Escorts Heart Hospital , New Delhi . The permission was dulyaccorded. Petitioner after preliminary treatment underwent surgery and wasrelieved on 8-6-2004 .Petitioner had to incur Rs . 2 ,19,473 /-for the entire treatment. Thereafter, he applied for reimbursement of the saidamount. The respondents instead of entire amount of Rs .2 ,19,473 /- reimbursed only Rs .1,15,000/-on the anvil that it was the maximum amount which is reimbursable asper circular issued by the Medical Education Department No. E18-58/2000/55/vishi/ 1, dated 15/20-3-2001 for an openheart surgery. 4.The facts being not controverted , nor the entitlementof the petitioner for medical reimbursement having undergone surgery at EscortsHeart Hospital, New Delhi, the question which arises for consideration iswhether the petitioner is entitled for the reimbursement of entire amount spentto meet out the expenses of surgery or are the respondents justified inlimiting same as per circular dated 15/20-3-2001. 5.Medical attendance and treatment of Government servant is regulated by theRules framed by Governor in exercise of powers conferred by proviso to Article309 of the Constitution of India, v/z., Madhya Pradesh Civil Services (MedicalAttendance) Rules, 1958 (hereinafter to be referred as 'Rules of 1958'). Since it is not disputed, that the petitioner underwent treatmentin the Hospital as per sanction by the Competent Authority. It is Rule 4which is relevant in the context as to the entitlementof Government servant of medical reimbursement. Rule 4 stipulates: - "4.(1) A Government servant shall be entitled to treatment in a hospital free ofcharge. If any amount is paid by a Government servant on account of suchtreatment, accommodation in hospital, diet or on any other account it shall bereimbursed to him in the manner and to the extent provided in these Rules. Rule 4 stipulates: - "4.(1) A Government servant shall be entitled to treatment in a hospital free ofcharge. If any amount is paid by a Government servant on account of suchtreatment, accommodation in hospital, diet or on any other account it shall bereimbursed to him in the manner and to the extent provided in these Rules. (2)The Medical Officer-in-charge of the Hospital may place the patients in anyward he consider appropriate" 6.The Rule as apparent entitles the Government servant for the reimbursement ofany amount paid by him on account of such treatment subject to the extentprovided in the Rules of 1958. Rule 6 stipulates that a Government servantshall pay in the first instance bills, if any, preferred by the hospitalauthorities on account of medical attendance, treatment, room rent or diet oron any other account and may , thereafter, prefer claimfor reimbursement in accordance with the Rules of 1958. Furthermore, Rule 7makes a provision regarding expenditure incurred or purchase of drugsprescribed by the authorised attendant in full.Provisions appended with Rule 7 stipulates that- "(1)If a Government servant submits medical reimbursement bills in respect oftreatment of himself or any member of his family as an outdoor patientexceeding Rs . 250/- (Rupees two hundred fifty) permonth for four times in a year, or continuously for three months, theControlling Authority shall seek second opinion of the Chief Medical and 1 lealth Officer and only on receipt of a favourable recommendation, shall pass the medical reimbursement bill. In case of treatmentby any Indian System of Medicines or Homoeopathy second opinion of theDivisional Officer Ayurveda or District Ayurveda , Officer-in-charge as the case may be, shall be,obtained instead of the Chief Medical and Health Officer. (2)If, in a year, bills for medical reimbursement exceeding Rs .3000/-(Rupees three thousand) are received from a Government servant theControlling Authority shall get, all such bills exceeding the said limitexamined by the Medical Board consisting of the Divisional Joint Director ofHealth Services, Chief Medical Officer and Health Officer, Specialist of theDisease concerned Divisional Officer Ayurveda orDistrict Ayurveda Officer-in-charge of the District,as the case may be and such bills shall be passed by the Controlling Authorityonly on the recommendations of the Board. (3)If the Bills for medical reimbursement presented by a Government servant in ayear exceed Rs . (3)If the Bills for medical reimbursement presented by a Government servant in ayear exceed Rs . 5,000/- (Rupees Five thousand) thenall such bills exceeding the above said limit shall be got scrutinized by aBoard consisting of the Director Medical Services, Director of MedicalEducation, Director of Indian Systems of Medicine and Homoeopathy and theControlling Authority shall pass such bills in accordance with therecommendation of the said Board only." 7.These provisions however, are not applicable in respect of reimbursement billsrelating to : - (a) In-door patients; and (b) Patientssuffering from such disease in respect of which the Chief Medical and HealthOfficer concerned has issued a certificate in the prescribed proforma to the effect that the treatment for the diseaseis required or likely to continue for a prolonged period. Bethat as it may. Except what is provided under Rule 7, no capping in respect ofthe reimbursement of expenses for treatment availed by a Government servant inthe hospital has been shown to be in the Rules. Except that by way ofinstructions circulated vide F-18-58/2000/55/vishi/1, dated 15/20-3-2001 by theMedical Education Department, providing the capping of medical reimbursement incase of Angiography of 10,500/-, for Open Heart Surgery Rs .1,15,000/- and for Kidney Transplant Rs . 1,92,000/-.Clause 2 of said instruction stipulates that expenses exceeding the aforesaidamount shall be borne by the Government servant. 9.The question is whether when Rules framed under Article 309 of the Constitutionof India does not provide for a capping whether the operation of Rule 4 can becircumvented by way of executive instructions. 10.Trite it is that Rule made under the proviso of Article 309 of the Constitutionof India are legislative in character [Please see : Rajkumar Vs. Union of India and others, AIR 1975 SC 1116 and B.S. Yadav Vs. State of Haryana , 1980 (Supp) SCC 524]. 11.Equally settled it is that the Statutory Rules cannot be supplanted by theexecutive instruction. In this context, reference can be had of the decision inT.N. Housing Board Vs. N. Balasubramaniun , (2004) 6SCC 85; wherein it was observed by Their Lordships in : - "6.It is one thing to say that there exists no provision in the Regulations whichwould attract the rules specified in Regulation 28 (a) or the instructions andrulings thereunder , but it is another thing to saythat the instructions if implemented cannot be given effect to having regard tothe consequences provided for in the extent Regulations, still the same wouldbe applicable. We have noticed hereinbefore that for Junior Engineers andDraftsmen eligibility criteria have been laid down. It is not in dispute thatthe said eligibility criteria are mandatory in nature and the validity thereofhad not been questioned. If a Draftsman is to be promoted to the post ofAssistant Executive Engineer, he must complete 15 years of service in the saidcapacity, whereas the Junior Engineer may have to complete only 10 years in thesaid post. Once the eligibility criteria are considered to be a pre-requisitefor giving effect to the statutory Regulations, the purported executiveinstructions would not be applicable. Once it is held that relying on the basisof the executive instructions in terms of Regulation 28 (a), the Draftsmen whohave been getting higher salary are given preference over the diploma holderJunior Engineers, the eligibility criteria contained in the StatutoryRegulations would become otiose; the logical corollan1 thereof would be thatthe executive instructions would prevail over the Statutory Regulations. Such aconsequence would lead to an absurdity and in that view of the matter it mustbe held that the executive instructions cannot be given effect to."(Emphasis supplied) 12.Therefore, in the considered opinion of this Court executive instruction dated15/20-3-2001, which put a capping on a maximum amount which has to be disbursedtowards medical reimbursement was contrary to Rule 4 (1) and (2) of the Rulesof 1958 will not be applicable as the same leads to supplanting of Rule 4 ofRules, 1958, if followed the operation of rules is restricted. 13.In view of above, petition is allowed. Respondents are directed to disburse theentire amount towards medical reimbursement as was claimed by the petitionerwho underwent Coronary Artery By-Pass Surgery after adjusting the amountalready paid. 14.Let the same be paid within a period of three months from the date ofcommunication of this order. Thepetition is allowed to the extent above.