Per R.C. Gandhi, J. (Oral)

This Letters Patent Appeal is directed against the Judgment and order dated 23. 7. 2003, whereby the learned Single Judge in OWP No. 431/ 1995 has issued a direction to the respondents 1 and 2, appellants herein, to arrange and make the payment of medical claim of Rs. 2, 28, 081/- to the petitioner who has been treated out side the Country.

2. The facts of the case are that Master Adil son of respondent/ writ petitioner, Assistant Surgeon in the Health Department, developed complex Cardiac ailment in the year 1988. On medical advise, the petitioner took his son Master Adil to United Kingdom for his treatment. He was treated and on his return a medical reimbursement claim was submitted to the Government which was permitted vide order dated 11.3.1992 in relaxation of rules. Unfortunately, the problem again developed. This time it was a case of acute Pulmonary edema. He was taken to Sheri Kashmir Institute of Medical Sciences Soura, Srinagar wherein on medical examination, the Doctor Specialist in the subject, found to have mitral value abnormality and advised mitral value surgery in England as an emergency measure. On the advise of the doctor, the petitioner took his son to England for treatment, Master Adil was operated upon at Duncon Waske on 2.7.1991 on the advise of John B. Hospital Leads U.K. The child was fitted with a pacemaker system and was treated for mitral value replacement for severe mitral regurgitation.

2. The respondent submitted the bills/ medical claim to the Government for reimbursement. The appellants neither accepted nor rejected the claim of the respondent. Under such circumstances respondent/ writ petitioner approached the Court by means of OWP No. 431/95 seeking direction to the appellant for reimbursement of the claim. Upon consideration of the pleadings and hearing learned counsel for the parties, the learned Single Judge directed the respondents for reimbursement of the medical claim.

3. Aggrieved of the order of learned Single Judge, the appellant has challenged the legality and correctness of the order under appeal mainly on the ground that an employee of the State Government is entitled to medical reimbursement claim in terms of the Jammu and Kashmir Civil Services (Medical Attendance and Allowance) Rules, 1990 (hereinafter called "the rules") and that the treatment outside the country can be availed only after the sanction is accorded by the Government and in the case of the respondent no such sanction was accorded.

4. Another aspect of the case is that during the pendency of the writ petition, the learned Single Judge directed the appellants to settle the claim of the respondent. The appellants neither settled the claim of the respondent nor filed the counter affidavit before the learned Single Judge. However, it was argued by the appellant before the learned Single Judge that the medical claim of the respondent could not be finalized because of the reason that the same was not traceable in the office of the Director, Health Services before whom the respondent has filed it alongwith necessary medical certificates and prescriptions. It is also recorded in the course of the order that the respondent submitted the duplicate copies of the documents/ claim which he had retain with him to the appellants for considering it for reimbursement. The documents submitted by the respondent were forwarded by the Director, Health Services to the Administrative Department but despite that no action was taken.

5. The plea of the learned counsel for the appellants that Government employee is under an obligation to take the ailing dependent outside the State for treatment only after prior sanction has been accorded by the State. In support of his plea he has relied upon rule 6 of the aforesaid rules.

6. Perusal of the Rule 6 shows that it nowhere indicates that prior sanction is required. However, we are of the view that the Government employee who has to get himself or his dependent treated outsi

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