JUDGMENT

H.L. Gokhale, J.

1. Leave granted.

2. This appeal by special leave by the State of Rajasthan is preferred against the Judgment dated 5th September, 2007 of a Division Bench of the High Court of Judicature for Rajasthan at Jodhpur in D.B. Civil Special Appeal No. 749 of 2007 dismissing the appeal filed by the Appellant against the judgment and order passed by a learned Single Judge of that Court dated 12th September, 2006 in Civil Writ Petition No. 2611 of 2006.

3. The facts giving rise to the present appeal are thus:

The Respondent was an employee working in the District & Sessions Court at Balotra, Rajasthan. He had gone to Uttaranchal on leave where he suffered a heart ailment. On his way back to Balotra, he suddenly fell ill and got admitted in the Escort Heart Institute in New Delhi and was operated for by-pass surgery. He claimed the reimbursement of the full medical expenses from the State of Rajasthan. The State Government accepted his request to a limited extent and granted him reimbursement upto an amount of Rs. 50,000/- which was permissible as per the Rules.

4. The Respondent felt aggrieved and hence filed a writ petition which was allowed by the learned Single Judge and the appeal therefrom was dismissed by the Division Bench and hence this appeal by special leave by the State of Rajasthan.

5. The Division Bench as well as the Single Judge have relied upon a judgment of a Division Bench of the Rajasthan High Court viz Shankarial v. State of Rajasthan reported in 2000 3 WLC (Raj.) 585. What had happened in that case was that the wife of the Appellant had similarly gone along with him outside Rajasthan where she had suffered a heart problem. She was taken to Escort Heart Institute in New Delhi where she was operated. The reimbursement of the expenditure of her surgery was declined by the Government. She filed a writ petition which was allowed by the Division Bench.

6. The learned Counsel for the Appellant points out that the Division Bench of the High Court had erred in relying upon Rule 7 of the Rajasthan Civil Services (Medical Attendance) Rules, 1970 as against Rule 6 thereof. He points out that the Rule 6 of those rules is the relevant rule which applies to a situation where an employee goes outside the state and falls sick. Rule 7 deals with a situation where a Government servant is not in a position to obtain the necessary medical treatment for the decease in the State of Rajasthan which is a different situation and in which case he is permitted the treatment in the hospitals which are mentioned in Appendix-11 of the Rules. Rule 6(1), according to him, is the relevant rule which reads as under:

6. Medical attendance and treatment outside Rajasthan:

(1) A Government servant including members of his family posted to a station or sent on duty or spending leave or otherwise at a station outside Rajasthan in India and who falls ill shall be entitled to free medical attendance and treatment as an indoor and outdoor patient in a hospital maintained by the Central Government or other State Government on the scale and conditions which would be admissible to him under these rules, had he been on duty or on leave in Rajasthan.

7. As stated above, Rule 7 deals with the treatment of a decease for which treatment is not available in the State of Rajasthan. Certainly it cannot be contended and it is not so contended by the Respondent that treatment for a heart surgery is not available in the State of Rajasthan. The learned Counsel for the Respondent contended that the Escort Heart Institute, New Delhi has been included in the Appendix 11 by the office memorandum dated 25th August, 1989 and has been approved and recognized by State of Rajasthan. Rule 7(1) itself points out that such institute can be approached for surgery but only for which treatment is not available in Rajasthan. Rule 7(1) reads as under:

7. Treatment of a disease for which treatment is not available in the State:

(1) A Government servant and the members of his