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Rajasthan High Court – Jodhpur
Chandra Narayan Mathur vs State And Ors (2025:Rj-Jd:34302-Db) on 4 August, 2025
[2025:RJ-JD:34302-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Writ Petition No. 10937/2013
Chandra Narayan Mathur S/o Shri Prem Narayan Mathur, Aged
about 61 years, Resident of 415, Vinoba Basti, Sriganganagar
(Raj.)
----Petitioner
Versus
1. The State of Rajasthan, through the Secretary, Department
of Finance, Government of Rajasthan, Secretariat, Jaipur.
2. The Secretary, Law & Legal Affairs Department,
Government of Rajasthan, Jaipur.
3. The Registrar General, Rajasthan High Court, Jodhpur.
4. Director of Medical Education and Ex-Officio Secretary,
West Bengal and Chairman of Authorization Committee,
Government of West Bengal, Swasthya Bhawan, Block GN
29, Sector - V, Salt Lake City, Kolkata - 700091
----Respondents
For Petitioner(s) : Mr. Ankur Mathur
Ms. Divya Bapna
For Respondent(s) : Mr. Rajesh Panwar, AAG with
Mr. Ayush Gehlot
Mr. Mahaveer Bishnoi, AAG
Mr. Aniket Tater
HON'BLE MR. JUSTICE MUNNURI LAXMAN
HON'BLE MR. JUSTICE BIPIN GUPTA
Order
04/08/2025
1. The present writ petition has been filed challenging the order
dated 15.01.2013 (Annexure-10) passed by respondent No. 2 and
pre and consequential orders, whereby the claim for
reimbursement of medical expenses of the petitioner has been
rejected.
2. The case of the petitioner is that the petitioner retired as a
Judicial Officer from the Higher Judicial Services and he incurred
expenditure for transplantation of kidney. The transplantation was
done basing on the authorization given by the committee
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constituted in this regard and such authorization was obtained
from the State Authorization Committee of Rajasthan where the
recipient resides and simultaneously, authorization from the State
of West Bengal was also obtained as the donor was from the State
of West Bengal and hospital in which the transplantation was done
was also in the State of West Bengal. The entire transplant was
done after obtaining necessary authorization from the two
committees of the two different States. After the surgery was
done, the petitioner made a claim for reimbursement of the
expenses incurred for the transplantation of the kidney.
3. The High Court examined the claim of the petitioner and
referred the matter to the Law & Legal Affairs Department to
examine the issues relating to non-compliance of the statutory
provisions contained under Section 9 of the Transplantation of
Human Organs and Tissues Act, 1994 (hereinafter referred to as
'the Act of 1994'). The Secretary, Law & Legal Affairs Department,
on the basis of the reference, has rejected the claim of the
petitioner with the following order:
"In the case of Shri Chandra Narayan Mathur, the
mandatory provision of the Transplantation of Human
Organs Act, 1994 and Rules 1995 made there under
were not complied with and the 'No objection
certificate' authorization for transplantation were issued
in contravention of the provisions of the Act and the
Rules without joint application of the door and
recipient, documents of income etc. and without any
inquiry as envisaged in the rules"
4. The case of the respondents is that Section 9 of the Act of
1994 requires that the application seeking No Objection must be
moved by the donor and recipient together before the committee
of the respective States and the No Objection Certificate granted
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by the committee appointed by the State of Rajasthan does not
refer to the application being filed by the donor as well as the
recipient. As such the Secretary, Law & Legal Affairs Department
was right in taking the decision of rejection for non-compliance of
the mandatory requirements under Section 9(5) of the Act of
1994.
5. Heard both the sides.
6. The claim for reimbursement was made under the Rajasthan
Judicial Officers (Medical Facilities) Rules, 2008 (hereinafter
referred to as 'the Rules of 2008'). Rule 5 of the Rules of 2008
reads as follows:
"5. Exception and modification.
- Judicial Officers shall be entitled to the medical
facilities contained in Rule 4 of these rules, subject to
the following exceptions and modifications, namely: -
(i)The Judicial Officer shall also be entitled to claim
expenses incurred by them for medical attendance and
treatment obtained by him and his family members in
private hospital/Dispensaries, notified by the State
Government in each city, District Head Quarter and
Sub-Divisional Headquarter for the medical treatment
of Judicial Officers and members of their family. The
expenses shall be inclusive of the charges for
accommodation in the place where such treatment is
taken;
(ii)For the purpose of medical treatment of Judicial
Officers and members of his family, Doctor of any
notified hospital and dispensary shall also be
considered as the authorized medical attendant;
(iii)The Judicial Officers shall be entitled to
reimbursement of expenses incurred by them for
himself or for his family members for the medical
attendance and treatment obtained by them in any
place other than in a Hospital or Dispensary maintained
and/or notified by the State Government, to the same
extent as they are entitled to under these rules for the
reimbursement of expenses incurred by them for
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'medical attendance and treatment obtained in notified
Hospital or Dispensary. Expenses shall be inclusive of
charges for accommodation;
(iv)There shall not be any ceiling on reimbursement
except to the extent of in patient room entitlement, in
patient room entitlement shall be as admissible to the
State Government employees; and
(v)There shall not be any ceiling on reimbursement of
expenditure for treatments like kidney transplant, open
heart surgery etc. or any disease notified by the
Government."
A reading of the above rule clearly makes out that a judicial
officer is entitled for reimbursement of expenses incurred on
medical treatment obtained by them in any place other than in a
Hospital or Dispensary maintained and/or notified by the State
Government, to the same extent as they are entitled under these
rules for reimbursement of expenses incurred by them for medical
attendance and treatment obtained in the notified hospital or
dispensary. Sub-Rule (v) of Rule 5 clearly says that there is no
ceiling so far as the expenses are concerned in respect of kidney
transplant, open heart surgery etc. or any other disease notified
by the Government. This means that as per the Rules of 2008, the
petitioner is entitled to full reimbursement of medical expenditure
incurred for transplantation, even in a case where the treatment is
done in a hospital other than the notified hospital or dispensary.
7. It is not in dispute that the hospital where the
transplantation was done is not a notified hospital. Still, as per
Rule 5 Sub-Rule (iii) of the Rules of 2008, the petitioner is entitled
for reimbursement of such medical expenses on par with
reimbursement of medical expenses in any notified hospital or
dispensary of the State Government.
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8. The Annexure-3 is the No Objection Certificate issued by the
State of Rajasthan and this No Objection Certificate was issued by
the State Authorization Committee constituted under the Act of
1994. The operative portion of the No Objection Certificate reads
as follows:
"This no objection certificate is issued by the
authorization committee after enquiry and verification
of the documents submitted by the recipient. This no
objection certificate is issued as per desire Mr. Chandra
Narayan Mathur, the recipient and it is not a referral by
the State Government for kidney transplantation
outside the State and the Committee has no financial
liability of kidney transplantation of the patient outside
the State."
From a reading of the contents of the No Objection
Certificate it is clear that the No Objection Certificate is issued
with a disclaimer that the petitioner is not entitled for financial
claim of expenses incurred for the kidney transplant. The No
Objection Certificate issued by the committee would also indicate
that the proposed surgery was to be done in Remedy Hospital,
Kolkata and the petitioner was directed to obtain the No Objection
Certificate from the concerned State where the transplant was to
take place and where the donor resides.
9. The Annexure-5 is the approval of the State Authorization
Committee of the State of West Bengal. The approval for
transplantation was also granted on the joint application of the
donor and the recipient with a specific reference of the place
where it is to be done. The reference of the communication of the
High Court to the Secretary, Law & Legal Affairs Department
would indicate that the petitioner, while obtaining No Objection
Certificate from the State Authorization Committee, has not
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fulfilled the condition of joint application which is required to be
made as per the provisions contained under Section 9(5) of the
Act of 1994. Section 9(5) of the Act of 1994 reads as follows:
"9. Restrictions on removal and transplantation of
human organs or tissues or both.-
......
(5) On an application jointly made, in such form and in
such manner as may be prescribed, by the donor and
the recipient, the Authorisation Committee shall, after
holding an inquiry and after satisfying itself that the
applicants have complied with all the requirements of
this Act and the rules made thereunder, grant to the
applicants approval for the removal and transplantation
of the human organ.”
A plain reading of the above provision indicates that the
application has to be made jointly in the prescribed format by the
donor and the recipient. On such application, the Authorization
Committee shall hold an enquiry and after satisfying itself, the
permission is required to be granted.
10. Against the rejection of any request for grant of
authorization, the provision of appeal is provided under Section 17
of the Act of 1994. Section 17 of the Act of 1994 reads as follows:
“17. Appeals.–Any person aggrieved by an order of
the Authorisation Committee rejecting an application
for approval under sub-section (6) of section 9, or any
hospital or Tissue Bank, as the case may be, aggrieved
by an order of the Appropriate Authority rejecting an
application for registration under sub-section (2) of
section 15 or an order of suspension or cancellation of
registration under sub-section (2) of section 16, may,
within thirty days from the date of the receipt of the
order, prefer an appeal, in such manner as may be
prescribed, against such order to–
(i) the Central Government where the appeal is
against the order of the Authorisation Committee
constituted under clause (a) of sub-section (4) of
section 9 or against the order of the Appropriate(Downloaded on 05/08/2025 at 09:42:57 PM)
[2025:RJ-JD:34302-DB] (7 of 8) [CW-10937/2013]Authority appointed under sub-section (1) of
section 13; or
(ii) the State Government, where the appeal is
against the order of the Authorisation Committee
constituted under clause (b) of sub-section (4) of
section 9 or against the order of the Appropriate
Authority appointed under sub-section (2) of
section 13.”
A reading of the above provision indicates that there is no
provision of appeal provided against grant of No Objection
Certificate by the State Authorization Committee, however,
rejection gives a cause of action for filing an appeal.
11. The Secretary, Law & Legal Affairs Department is not the
appellate authority under the Act of 1994 and he cannot sit over
the certificate of authorization granted by the State Authorization
Committee holding that such approval has been done and
authorization was granted without there being any joint
application. The consideration of the claim of the donor or
recipient pre-supposes submission of form in terms of the rules.
The presumption is that before the certificate has been issued, the
requirement of the law has been complied with. There is no
material before the Secretary, Law & Legal Affairs Department to
say that the application was not jointly submitted either before the
State Authorization Committee of the State of Rajasthan or State
of West Bengal as he has no access. Further, he is not the
appellate authority to sit over and examine the validity of the
authorization granted by the State Authorization Committee of the
two different States. Therefore, the impugned order passed by the
Secretary, Law & Legal Affairs Department is beyond jurisdiction
and such order is not sustainable. Therefore, this Court is inclined
to allow the writ petition.
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12. In the result, the instant writ petition is allowed and the
impugned order dated 15.01.2013 passed by the Secretary, Law &
Legal Affairs Department and all consequential orders are set
aside. The respondents are directed to examine the claim of the
petitioner and release the amount within a period of one month
from today. The respondent No. 2 shall pay a cost of Rupees One
Lakh to the petitioner. Further, the claim amount shall be paid with
an interest @ 12% p.a. from the date of claim till the amount is
paid to the petitioner.
13. All pending applications, if any, shall stand disposed of.
(BIPIN GUPTA),J (MUNNURI LAXMAN),J
21-BhumikaP/-
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