Honble SHIV KUMAR SHARMA, J.–Is the claim of the petitioner for medical reimbursement valid and justified in the facts and circumstances of this case, is the core question which emerges for consideration in the instant writ petition.

(2). The petitioners husband late Shri Jagpal Singh, was the member of the Rajasthan Higher Judicial Service (in short Higher Judicial Service). When he was holding the post of President District Consumer Redressal Forum, Dausa in the year 2000 he suspected to be a severe heart patient. He was examined by the Expert Cardiology of SMS Hospital, who advised him to undergo heart surgery. His case was referred to a Medical Board for examining the feasibility and place of heart surgery, which submitted its report on May 26, 2000. It was inter alia stated in the report that Jagpal Singh is suffering from Coronary Artery Bypass Grafting (for short CABG) and his three vessels require grafting, therefore he needed CABG operation. It was further recommended that although this facility was available in the State of Rajasthan, yet he was referred to All India Institute of Medical Science, New Delhi or Escorts Hospital, New Delhi as he wanted to be operated in New Delhi. The approximate cost of operation in the SMS Hospital was shown to be Rs. 50,000/- and expenses of an attendant as per rule. A communication dated May 26, 2000 was received by Jagpal Singh from Principal, SMS Medical College and Controller of the Attached Hospitals, Jaipur wherein it was stated that he could go to Escorts Heart Institute New Delhi (for short Escorts). Jagpal Singh thereafter was admitted in the Escorts for Coronary Angiography on May 20, 2000 and was discharged on May 21, 2000. Since immediate surgery was necessary required Jagpal Singh was again admitted on May 29, 2000 to the Escorts where CABG operation was performed. Jagpal Singh was discharged on June 12, 2000. In the Escorts following amount was paid by Jagpal Singh towards surgery:

Rs. 14,000/- vide Receipt No. 2538 dated 20.5.2000

Rs. 1,90,000 vide Receipt No. 2955 dated 29.5.2000

Rs. 7200 vide Receipt No. 3626 dated 12.6.2000.

Shri Jagpal Singh during his life time made several representations to the respondents seeking medical reimbursement but no heed was paid. After the demise of Shri Jagpal Singh, the petitioner has filed the instant writ petition with the following prayer:

(i) for medical reimbursement of Rs. 2,11,200/- and

(ii) to declare Rule 7 of the Rajasthan Civil Services Medical Attendant Rules 1970 (for short 1970 Rules) as unconstitutional.

(3). The respondents submitted reply to the writ petition with the averments that the Medical Board after examining Jagpal Singh observed in its report that the treatment required by him was available in the State of Rajasthan but since the patient wanted to be operated in New Delhi, he could be referred to New Delhi AIIMS/ESCORTS. On May 30, 2000 Jagpal Singh wrote to the Principal SMS Medical College Jaipur that since Doctors at Escorts advised for immediate surgery his case could be referred to the Escorts. Therefore Jagpal Singh was entitled to only such amount of expenses which would have been spent had he been treated in SMS Medical College, Jaipur. As per rule 7 of the 1970 Rules reimbursement of expenses as incurred on treatment in Medical Hospitals/Institutions outside the State as was permissible only in respect of Hospitals enumerated in Appendix 11. Since Escorts was not included in Appendix 11, the relief sought in the writ petition could not be granted.

(4). We have pondered over the rival submissions and scanned the material on record. Before proceeding further it will be appropriate to scan the scheme of 1970 Rules framed under the proviso to Article 309 of the Constitution and came into force with effect from March 1, 1970. Rule 7 of 1970 Rules 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 family suffering from a d

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