Reimbursement of Medical expenditure under CSMA rules 1944/CGHS-Madras High Court judgement
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29-09-2008
CORAM
THE HONOURABLE MR. JUSTICE P.K. MISRA
AND
THE HONOURABLE MR. JUSTICE K. CHANDRU
WRIT PETITION Nos.32770 OF 2004, 663 of 2003, 5575, 5755, 28587, 34081, 34143, 34510, 37025 of 2004, 1713, 10677, 18921, 39282 of 2005, 9719 of 2007 and 8822 of 2002
and
WPMP.NOs.34710, 41190, 41274, 41635 of 2004
1901, 11597, 20479, 33364, 42106 of 2005 and 1 of 2007
W.P.No.32770 of 2004
Union of India rep. by
The Deputy General Manager,
(South West) Chennai Telephones,
Department of Telecommunication,
Chennai 600 010. .. Petitioner
Vs.
1. R. Rangarajan
2. The Registrar,
Central Administrative Tribunal,
Madras Bench, High Court Buildings,
Chennai 600 104. .. RespondentsFor Petitioners in WP.Nos.32770,28587,: Mr.S. Udayakumar, ACGSC 34081,34143, 34510, 18921& 39282,/2005 For Petitioner in WP.No.663/2003 : Mr.S. Krishnaswamy, SCGSC For Petitioners in WP.9719/07,5575/04: Mr.S.M. Deenadayalan, ACGSC For Petitioner : Mr. Yashod Varadhan in WP.8822/2002 & R1 Senior Counsel for in WP.Nos.663/03 & Mr.V.C. Vijayaraghavan 34081/04 For Petitioner in WP.No.37025/2004 : M/s. Thenkodinelson For Petitioner in : Mr.M. Devadoss WP.No.1713/2005 For Petitioner in WP.No.10677/2005 : Mr.V. Vijay Shankar For Petitioner in WP.No.5755/2004 : Mr.A.P. Balasubramaniam,CGSC For Respondent-1 in WP.No.28587,34081, 34143/2004, 10677, : Mr.V.C. Vijayaraghavan & 39282 of 2005 For Respondent-1 in WP.No.34510/2004 : Mr.E.K. Subramanian For Respondent-1 in WP.No.37025/2004 : Mr.S. Ramaswamy Rajarajan For Respondent-1 : Mr.P. Wilson in WP.No.1713/2005 Asst. Solicitor General For Respondent-1 in WP.No.18921/2005 : Mr.V. Balasundaram For Respondent-2 in WP.No.8822/2002 : Mr.V. Vaithyalingam SCCG COMMON JUDGMENT P.K. MISRA, J In all these writ petitions, the question regarding availability of medical facilities to the retired employees of the Central Government, either under the Central Services (Medical Attendance) Rules, 1944 (hereinafter referred to as "the CS (MA) Rules) or the Central Government Health Scheme (hereinafter referred to as "the CGHS) and issuance of Central Government Health Scheme Card for availing such facilities, is the core issue. The various Original Applications were filed by different retired employees of the Central Government claiming reimbursement of medical expenses / benefit of medical facilities.
For convenience, the Central Administrative Tribunal, which decided various applications in favour of the retired employees, is referred to hereinafter as the Tribunal and the retired employees, who were applicants before the Tribunal, are referred to as "the applicant".
2. The basic facts and the basic questions involved in all these writ petitions are similar. The main orders of the Tribunal, on the basis of which subsequent orders have been passed are essentially contained in O.A.No.194 of 2001 and O.A.No.619 of 2002, which had been filed by the retired employees of the Central Government claiming medical reimbursement either on the basis of CS (MA) Rules, 1944 or the CGHS.
3. The applicant in O.A.No.194 of 2001 had retired from the Department of Telecommunication (formerly a part of Postal and Telegraph Department). During his service, he was getting the benefit of medical reimbursement as contemplated in CS (MA) Rules. Since he was posted at places which were not covered under CGHS during his service, he was not a member of the CGHS and after his retirement he was getting a medical allowance of Rs.100 per month as per Office Memorandum issued by the Department of Pension & Pensioners Welfare, vide No.F.No.45/57/97-P & PW (C), dated 19.12.1997. He had to undergo a bye-pass heart surgery in Sri Ramachandra Hospital, Porur. He claimed reimbursement of the medical expenditure in connection with such treatment. Since no reply was received, he filed O.A.No.194 of 2001.
3.1 The stand taken by the Department in such case was to the effect that the retired employee was not entitled to the benefit of CS (MA) Rules, the applicant was not a member of the CGHS and was only getting Rs.100/- per month as medical allowance and was not entitled to any reimbursement for indoor treatment. The Tribunal, relying upon the Office Memorandums dated 19.12.1997 and 5.6.1998, directed the Department to scrutinise under CS (MA) Rules, the claim made by the applicant for reimbursement of the expenditure incurred by him. The Tribunal, however, refused the claim of the applicant regarding payment of interest.
3.2. W.P.No.8822 of 2002 has been filed by such applicant challenging the order of the Tribunal relating to rejection of the claim for interest. Subsequently, the Union of India has filed W.P.No.32770 of 2004 challenging the direction of the Tribunal regarding reimbursement.
4. Similar claims by the retired employees for reimbursement of medical expenses as indoor patients were the subject matter of litigation in the subsequent Original Applications filed by such retired employees. Such Original Applications have been allowed by the Tribunal by following the order dated 23.11.2001 in O.A.No.194 of 2001 and such orders are the subject matter of challenge in W.P.Nos.28587, 32770, 34081, 34143, 34510, 37025 of 2004, 1713, 10677 of 2005 and 9719 of 2007 filed at the instance of the Union of India.
5. O.A.No.619 of 2002, the order wherein is the subject matter of challenge in W.P.No.663 of 2003, was filed by a retired employee belonging to Postal and Telegraph Department. Even though he wanted to avail the benefit of CGHS, his request was not considered on the ground that he had retired at Trichy, where such claim has not been extended. The Madras Bench of the Central Administrative Tribunal by referring to the order passed by Bangalore Bench of the Central Administrative Tribunal in O.A.No.704 of 2001, wherein it was observed that the benefit of the CGHS cannot be confined only to the places where such facilities are available and similar benefits should be made available to the retired employees settled down at places not covered under the CGHS, directed the Department to grant the benefit of CGHS. Such order is the subject matter of challenge in W.P.No.663 of 2003 at the instance of the Union of India.
6. Similar orders were subsequently passed by the Tribunal in several other Original Applications, which are the subject matter of challenge at the instance of the Union of India in W.P.Nos.5575, 5775 of 2004, 18921 and 39282 of 2005.
7. As already indicated, the core question in all these writ petitions is reimbursement of medical expenditure incurred by retired Central Government employees including in the Department of Posts & Telegraphs.
8. So far as the Government servants are concerned, the rules relating to Medical Attendance are contained in CS (MA) Rules. All Government servants, except those in Railway service, and some other categories as indicated in such Rules, are covered under the Rules. However, as per Note 2, the Rules do not apply to the retired Government officials. The salient features of such Rules are to the effect that the concerned Government servant is entitled to treatment in an approved hospital, free of cost or on reimbursement basis. Such facility is available both as an out-patient or as an in-patient, subject to various rules and regulations, including CGHS, where such facilities are available.
9. So far as the retired employees are concerned, they can be covered under the Central Government Health Scheme, but CGHS as such may not be applicable to all. In this background, Vth Central Pay Commission had made a recommendation to the following effect :-
"140.18. We have given due consideration to the various suggestions made to us in this regard and recommend that pensioners residing in an area not covered by CGHS, should be given a fixed amount of medical allowance at Rs.100 p.m. for meeting the expenditure on day-to-day medical expenses that do not require hospitalisation. In addition, CS (MA) Rues, 1944 should be extended to pensioners, in a restricted manner so as to facilitate reimburesement of expenditure on hospitalisation in a Government hospital / private hospital recognised under CGHS or under CS(MA) rules for the purpose. Such reimbursement claim should be settled in full by the respective Ministry / department of the pensioner under the provisions of CS (MA) rules."
(Emphasis added by us)
10. The aforesaid report of the 5th Central Pay Commission was apparently accepted by the Government as per Resolution No.45/86/97-P.PW (A) dated 30.9.1997. At any rate, the Ministry of Personnel, Public Grievances & Pension, issued an Office Memorandum dated 19.12.1997. Since the question now is vitally linked with such Office Memorandum, it is useful to extract the relevant paragraph of the said Office Memorandum :-
"The undersigned is directed to state that in pursuance of the Government's decision on the recommendations of the 5th Central Pay Commission announced in this Department's resolution No.45/86/97-P.PW (A), dated 30.9.1997, sanction of the President is hereby accorded to the grant of fixed medical allowance @ Rs.100 p.m. to Central Government pensioners / family pensioners residing in areas not covered by Central Government Health Scheme administered by the Ministry of Health & Family Welfare and corresponding Health Schemes administered by other Ministries / Departments for their retired employees for meeting expenditure on day-to-day medical expenses that do not require hospitalisation.
2. These orders shall apply to Central Government pensioners / family pensioners, who at the time of retirement / death were governed by CCS (Pension) Rules, 1972 or other corresponding rules in operation prior to commencement of these rules and are eligible for medical facilities after retirement. Separate orders will be issued by the respective administrative authorities in respect of members of Armed Forces, All India Services and Railway pensioners / family pensioners.
3. Existing pensioners as well as the future retirees shall have to exercise one-time option to avail of medical facilities under CGHS or other similar Health Scheme of their respective Ministry / Department or to claim fixed medical allowance or Rs.100 p.m. In the case of future retirees, the option shall be obtained by the Head of Office along with other pension papers and in case the retiring employee opts for medical allowance, specific entry to this effect shall be made in both the halves of PPO. The CGHS or other medical authorities, while issuing card to the pensioner shall check the position in this regard from PPO and restrict the facilities to be made available accordingly, i.e. card is valid only for indoor / outdoor patient treatment, as the case may be.
4. In the case of existing pensioners, if they opt for medical allowance, an undertaking shall be required to be submitted by claimants to the effect that they are entitled to medical facilities under CGHS or other similar scheme administered by the Central Government but are residing in areas where no such outdoor facilities are available. On the basis of this undertaking, pension disbursing authorities shall make an entry in regard to grant of medical allowance in the both halves of PPO of the individual concerned and authorize payment of medical allowance. Such an undertaking can be obtained by Bank, Departmental PAO and Treasury once every year along with other certificates, the pensioner is required to furnish. As and when grant of medical allowance to a pensioner / family pensioner is authorized by the pension disbursing authority, intimation in this effect shall be sent to the CPAO / concerned Pay & Accounts Office in the prescribed pro forma."
11. Subsequently, the Ministry of Health & Family Welfare took a decision as per Office Memorandum No.S-14025/4/96 dated 5.6.1998, which is to the following effect :-
"Extension of CS (MA) Rules, 1944 to pensioners residing in areas not covered by CGHS The undersigned is directed to refer to the Department of Pension and Pensioners' Welfare, O.M.No.45/74/97-PP&PW(C), dated 15.4.1997 on the above subject and to say that it has been decided by this Ministry that the pensioners should not be deprived of medical facilities from the Government in their old age when they require them most. This Ministry has, therefore, no objection to the extension of the CS (MA) Rules to the Central Government pensioners residing in non-CGHS area as recommended by the Pay Commission. However, the responsibility of administrating the CS (MA) Rules for pensioners cannot be handled by CGHS. It should be administered by the respective Ministries / Departments as in the case of serving employees covered under CS (MA) Rules , 1944. The Department of Pension and Pensioners' Welfare would need to have the modalities worked out for the implementation of the rules in consultation with the Ministries / Departments prior to the measure being introduced to avoid any hardship to the pensioners. The pensioners could be given a one-time option at the time of their retirement for medical coverage under CGHS or under the CS (MA) Rules, 1944. In case of a pensioner opting for CGHS facilities, he / she would have to get himself / herself registered in the nearest CGHS city for availing of hospitalization facilities. In such cases, the reimbursement claims would be processed by the Additional Director, CGHS of the concerned city. For those opting for medical facilities under the CS (MA) Rules, the scrutiny of the claims would have to be done by the parent office as in the case of serving employees and the payment would also have to be made by them. The list of AMAs to be appointed under CS (MA) Rules would be decided Ministry / Department-wise as provided under the rules. The beneficiaries of the CS (MA) Rules, 1944 would be entitled to avail of hospitalization facilities as provided under these rules.
The Department of Pension and Pensioners' Welfare are requested to take further necessary action in the matter accordingly."
12. Subsequently, however, the Ministry of Health & Family Welfare by Office Memorandum No.S.14025/4/96-MS dated 20.8.2004 seems to have backtracked on its earlier Office Memorandum dated 5.6.1998 by issuing the following clarification :-
"The CS (MA) Rules, 1944 is not applicable to the Central Government pensioners. The 5th Central Pay Commission had recommended extension of CS (MA) Rules, 1944 to the Central Government pensioners residing in the areas not covered by CGHS. On a reference received from the Department of Pension and Pensioners Welfare on this subject, the response of the Department of Health had been conveyed through the O.M.No.S.14025/4/96-MS dated 5.6.1998. The response of this Department was that it did not have any objection to the proposal of extension of CS (MA) Rules, 1944 to central government pensioners residing in non-CGHS areas as recommended by the 5th Pay Commission, subject to the condition that the responsibility of administering the CS (MA) Rules, 1944 for pensioners would be of the Departments / Ministries concerned.
The said O.M. dated 5.6.1998 was in reply to a reference in O.M.No.45/74/97 PP&PW(C) dated 15.4.97 from the Department of Pensions and Pensioners' Welfare. After that also communication between these two departments had continued on this subject. In fact in a subsequent O.M. of the same number dated 12.1.1999, the views of all the Ministries / Departments of the Government of India had been sought before a final decision could be taken. But unfortunately, the O.M. dated 5.6.1998 has been misinterpreted by some pensioners as the final order of the Government of India to extend CS (MA) Rules, 1944 to pensioners. A lot of avoidable litigation has already taken place, because some pensioners have obtained favourable orders from various courts / tribunals on the basis of the said O.M. dated 5.6.1998.
It is therefore considered necessary to clarify unequivocally that the O.M. dated 5.6.1998 was not intended to be a final order extending the applicability of CS (MA) Rules,1944 to pensioners. In fact, it is not possible for any individual department to take such policy decision without obtaining the views of various departments, and particularly the Department of Expenditure. Such being the case, in the process of examining the recommendation of the 5th Pay Commission on this issue, the Department of Expenditure has categorically said that in view of huge financial implications, it is not feasible to extend CS (MA) Rules, 1944 to pensioners.
Therefore, any interpretation based on the O.M. dated 5.6.98 of this Department that the pensioners come within the purview of the CS (MA) Rules, 1944 is wholly misplaced.
13. On a careful reading of the CS (MA) Rules and the CGHS and the various Office Memorandums issued by various Ministries from time to time, the following picture emerges :-
(1) A person in employment under the Central Government has the benefit of CS (MA) Rules, 1944, and can have the benefit of CGHS and similar benefits given by any other Department depending upon the place of posting. There is no difficulty relating to any Central Government employee relating to treatment as indoor or outdoor patient.
(2) The CS (MA) Rules, 1944 are not applicable to the retired employees by virtue of Note No.2(iv) of Rule 1 of CS (MA) Rules.
(3) Even though V Pay Commission had made a strong recommendation for extending the medical facilities contemplated under the CS(MA) Rules, 1944 to the retired employees and even though in principle the Ministry of Health and Family Welfare and even the Department of Pension and Pensioners' Welfare seem to have accepted such recommendation, the modalities, as suggested by the Health Ministry, are yet to be worked out and no final decision appears to have been taken.
(4) A person belonging to the Posts and Telegraphs Department is entitled to medical facilities contemplated by the Department; a retired employee can avail of indoor and outdoor facilities available under CGHS, provided he becomes a member and makes the contribution.
(5) Where there is no CGHS facility available for outdoor treatment, a retired employee can avail monthly allowance of Rs.100/- in order to meet day-to-day medical expenses. Similarly he can avail of treatment as indoor patient at the nearest CGHS approved hospital, provided he opts for it and makes some contribution.
14. As a necessary inference from the above, it is clear that if a quondam employee happens to be a resident of a place where CGHS facilities are available, he can avail the facilities both as outdoor and indoor patient and, if such facilities are not available, he can avail Rs.100/- per month for day today medical expenses. Where accidentally a retired employee resides at a place where there is no CGHS facilities, even though he may receive Rs.100/- as medical allowance to meet his day-to-day medical expenses, he does not have any privilege of being treated as indoor patient. Only to ameliorate such a situation, 5th Central Pay Commission had recommended for extending the benefit available under the CS (MA) Rules.
15. The Central Administrative Tribunal of the Madras Bench, while deciding O.A.No.194 of 2001 and recognising the aforesaid position, observed that the decision had been taken vide resolution dated 30.9.1997 to accept the recommendation of the V Pay Commission, which has been communicated by the Ministry of Health vide Office Memorandum dated 19.12.1997 and Office Memorandum dated 5.6.1998 and, therefore, a retired Central Government employee is entitled to indoor facilities at par with the Government servants. The Bangalore Bench of the Central Administrative Tribunal seems to have taken the view that it would be violative of Article 14 of the Constitution if the retired employees residing at a place not covered by CGHS are not extended the same facilities as it is made available to the retired employees residing within the areas coming under CGHS. Even though Ernakulam Bench of the Central Administrative Tribunal had taken a similar view, such decision was reversed by the Kerala High Court in W.P.(C)Nos.14055 of 2006 & connected matters.
16. The various counsels representing the Central Government or the Departments thereof, almost in one voice, have contended that even though 5th Central Pay Commission has recommended for applying the provisions of CS (MA) Rules, to all retired employees of the Central Government and even though the Ministry of Health and Family Welfare has intimated that it has got no objection for extension of such Rules, the matter has not been finalised and neither the rules have been amended nor any order has been issued for extending such benefit to the retired employees of the Government. It has been submitted by the counsels that as a matter of fact the Office Memorandum dated 20.8.2004 has made the position clear. It has been therefore submitted that only those who are members of the CGHS and are issued CGHS cards are entitled to treatment either as out-patient or as in-patient depending upon the CGHS Card and the retired employees cannot claim any benefit other than what is contemplated under the CGHS.
17. They have placed strong reliance upon the unreported decision of the Kerala High Court in W.P.(C) Nos.14055 of 2006 & connected matters, disposed of on 18.10.2006. A copy of the said judgment has been included in the typed set of papers. The Division Bench of Kerala High Court has accepted the contention of the Department to the effect that the communication made by the Health Ministry did not have the effect of a binding Government Order and such communication has been clarified and made ineffective by the subsequent clarification dated 20.8.2004. The Kerala High Court also repelled the contention of the petitioners relating to alleged discrimination between those who are given the benefit under the CGHS and the others for whom no similar benefits are available on the ground that CGHS is applicable only to some of the cities and there is real nexus for covering the persons in the important cities alone and Article 14 of the Constitution can be pressed into service. However, even the Kerala High Court directed that reimbursement should be made in respect of the retired employees who had been treated prior to issuance of Office Memorandum dated 20.8.2004.
18. Learned counsel appearing for various retired employees, on the other hand, have emphasised on the right to life under Article 21 and right to equality under Article 14 of the Constitution. It has been submitted by them that recommendation of the 5th Central Pay Commission has been accepted by the Government and only it has been indicated that modalities have to be worked out and the matters are to be monitored through various Ministries and not through the Ministry of Health and Family Welfare.
19. In (1996) 4 SCC 37 (PASCHIM BANGA KHET MAZDOOR SAMITY AND OTHERS v. STATE OF W.B. AND ANOTHER), the Supreme Court had observed :-
"9. The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. . . .
16. It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. [See: Khatri (II) v. State of Bihar, (1981) 1 SCC at p.627.] The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view. . . . ." (Emphasis added)
20. In (1998) 4 SCC 117 (STATE OF PUNJAB & OTHERS v. RAM LUBHAYA BAGGA AND OTHERS), after referring to several earlier decisions, the Supreme Court has recognised that though the right under Article 21 obviously would include the right to lead a healthy life, yet such right cannot be considered as an absolute right and facilities are to be provided by the State within their financial constraints.
21. The aforesaid decision of the Supreme Court was followed subsequently in (2001) 9 SCC 217 (STATE OF PUNJAB & OTHERS v. MOHAN LAL JINDAL). In the said case, the patient had to go other hospital because of necessity of treatment on emergency basis, which was not a hospital recognised for reimbursement. In such circumstances, the Supreme Court had observed :-
"2. . . . According to learned counsel for the respondent as there was a long queue of patients at AIIMS Hospital for bypass surgery and his case was of emergency, he had to go to other hospital. It may be so. However, in the light of the reported decision, the medical reimbursement available to the respondent will be at the AIIMS rates, which has already been paid to him. The additional amount which he has claimed was granted by the High Court on the ground that the new policy was not sufficiently published. The said view of the High Court cannot be sustained. Consequently, the appeal is allowed by observing that the respondent will be entitled to medical reimbursement in the light of the new policy i.e. at AIIMS rates. It was however, vehemently submitted by learned counsel for the respondent that exception deserves to be made in this case as the respondent who was a Teacher could not afford such huge medical expenses which had to be incurred by him due to long queue for bypass surgery in the AIIMS Hospital and he had to go to other hospital. It is further submitted by learned counsel for the respondent that the appellants may consider his grievance. He may submit such a representation on compassionate grounds. We have no doubt that such a representation will be sympathetically considered by the appellant authorities on its own merits. . . ." (Emphasis added)
22. In AIR 1997 SC 1225 = (1997) 2 SCC 83 (STATE OF PUNJAB & OTHERS v. MOHINDER SINGH CHAWLA & OTHERS), it was observed :-
"4. . . . It is now settled law that right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities. If the government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference whereat the government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee. The High Court was, therefore, right in giving direction to reimburse the expenses incurred towards room rent by the respondent during his stay in the hospital as an in-patient.
5. The learned counsel then contends that the State would be saddled with needless heavy burden, while other general patients would not be able to get similar treatment. We appreciate the stand taken that greater allocation requires to be made to the general patients but unfortunately due attention for proper maintenance and treatment in government hospitals is not being given and mismanagement is not being prevented. Having had the constitutional obligation to bear the expenses for the government servant while in service or after retirement from service, as per the policy of the Government, the Government is required to fulfil the constitutional obligation. Necessarily, the State has to bear the expenses incurred in that behalf.
. . .
11. We are unable to agree with the stand taken by the Government. It is seen that the Government had decided in the proceedings dated 8-10-1991 to reimburse the medical expenditure incurred by the Punjab Government employees/pensioners and dependants on treatment taken abroad in a private hospital. It is stated in paragraphs 2 and 3 that the Government has prepared a list of those diseases for which the specialised treatment is not available in the Punjab Government hospitals but it is available in certain identified private hospitals, both within and outside the State. It was, therefore, decided to recognise these hospitals for treatment of the diseases mentioned against their names in the enclosed list for the Punjab Government employees/pensioners and their dependants. The terms and conditions contained in the letter under reference would remain applicable. The Government can, however, revise the list in future. The name of the disease for which the treatment is not available in the Punjab Government hospitals is shown as Open Heart Surgery and the name of the private hospital is shown as Escorts Heart Institute, New Delhi as one of the approved hospitals/institutions. Thus, for open heart surgery or heart disease the Escorts Heart Institute is an authorised and recognised institution by the Government of Punjab. Consequently, when the patient was admitted and had taken the treatment in the hospital and had incurred the expenditure towards room charges, inevitably the consequential rent paid for the room during his stay is an integral part of his expenditure incurred for the treatment. Consequently the Government is required to reimburse the expenditure incurred for the period during which the patient stayed in the approved hospital for treatment. It is incongruous that while the patient is admitted to undergo treatment, he is refused the reimbursement of the actual expenditure incurred towards room rent and is given the expenditure of the room rent chargeable in another institute whereat he had not actually undergone treatment. Under these circumstances, the contention of the State Government is obviously untenable and incongruous. We hold that the High Court was right in giving the direction for reimbursement of a sum of Rs.20,000 incurred by the respondent towards the room rent for his stay while undergoing treatment in Escorts Heart Institute, New Delhi." (Emphasis added)
23. In (2006) 8 SCC 399 (CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS AND OTHERS v. UNION OF INDIA AND OTHERS), while repelling the contention that refusal to extend similar facilities to Ex-servicemen when compared to Servicemen in the employment was discriminatory, the Supreme Court nevertheless agreed with the view expressed in (1998) 4 SCC 117 (cited supra), and observed in para 66 as follows:-
"66. We are in agreement with the above view. In our considered opinion, though the right to medical aid is a fundamental right of all citizens including ex-servicemen guaranteed by Article 21 of the Constitution, framing of scheme for ex-servicemen and asking them to pay one-time contribution neither violates Part III nor is it inconsistent with Part IV of the Constitution. Ex-servicemen who are getting pension have been asked to become members of ECHS by making one-time contribution of reasonable amount (ranging from Rs.1800 to Rs.18,000). To us, this cannot be held illegal, unlawful, arbitrary or otherwise unreasonable."
Ultimately it was observed :-
"71. For the reasons aforesaid, the writ petition deserves to be partly allowed. Keeping in view the totality of facts and circumstances, in our considered view, the ends of justice would be met if we hold the Ex-Servicemen Contributory Health Scheme, 2002 (ECHS) to be legal, valid, intra vires and constitutional but direct the respondent Government either to waive the amount of contribution or to pay such amount on behalf of those ex-servicemen who retired prior to 1-1-1996 and who intend to avail medical facilities and benefits under the said Scheme by exercising option by becoming members of ECHS. In other words, it is open to ex-defence personnel, who retired prior to 1-1-1996 to become members of ECHS and to claim medical facilities and benefits under the said Scheme without payment of contribution amount. They are, however, not entitled to claim medical allowance in future. The writ petition is accordingly disposed of."
(Emphasis added)
24. In NARENDRA PAL SINGH v. UNION OF INDIA AND OTHERS [79 (1999) DLT 358], the petitioner, who had retired from the Central Government service, claimed medical reimbursement for the expenses for the operation done on emergent basis, which was not accepted on the ground that he had taken treatment in a non-CGHS covered area, and as per the CGHS orders and instructions, he was no entitled to such reimbursement. Single Judge of the Delhi High Court after referring to the decisions of the Supreme Court reported in Surjit Singh case (AIR 1996 SC 1388) and Mohinder Singh Chawla case (AIR 1997 SC 1225), observed :-
"3.The petitioner has admittedly suffered the ailment and required urgent and immediate treatment in an emergency. The plea of the Government that he has not taken prior sanction for treatment in non-C.G.H.S. Hospital is clearly erroneous and cannot be entertained. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. It is always open for the Government to grant ex-post facto sanction subject to verification of the claim which has not been denied in the present case. . . .
(Emphasis added) It was further observed :-
"5. The law is, therefore, well settled that right to health is an integral part to life and the Government has constitutional obligation to provide the health facilities to its employees or retired employees and in case an employee requires a specialised treatment in an approved hospital it is the duty of the Government to bear or reimburse the expenses. The petitioner in this case had to be operated in an emergency as he suffered a heart problem and in case he had waited for a prior sanction he might not have survived. Therefore, in this situation it is the duty of the Government to grant ex-post facto sanction and not deny the claim of the petitioner on technical and flimsy grounds. Firstly the Government does not give any proper reasoning to deny the claim of the petitioner in its communication dated 4th December, 1997 and secondly the affidavit of Dr. P.K. Baliar Singh merely states that since the petitioner had taken the treatment in non-C.G.H.S. covered area and as per Central Government Health Scheme Orders and instructions as issued by the Government, a pensioner is not entitled to the facilities of reimbursement. These reasons cannot be appreciated in view of the settled position that the petitioner is entitled to take recourse to an emergency treatment in any area if the circumstances and the nature of disease so warrant."
(Emphasis added)
25. In B.R. MEHTA v. UNION OF INDIA & OTHERS [79(1999) DLT 388], the petitioner retired from the Central Excise and Customs at Karnal. There was no C.G.H.S. Hospital or dispensary at Karnal, where the retired Central Government employees could get treatment. His claim for medical reimbursement was resisted inter alia on the ground that CGHS facilities were not available in Karnal and the petitioner was not a card holder since there was no CGHS facility.
The Delhi High Court repelled such callous contention by observing:-
"6. The learned counsel for the respondents on the above basis has contended that the petitioner was not a C.G.H.S. card-holder and, therefore, he was not entitled to any reimbursement. This argument is totally fallacious as the petitioner retired from the services of the Central Government from the Department of Central Excise where he had served for 41 years and was in any case entitled to the reimbursement as permissible under the rules. The petitioner after retirement settled in Karnal where Central Government does not operate its health scheme (C.G.H.S.). Therefore, the petitioner was left with no option but to get himself examined at Civil Hospital, Karnal which is operated by the State. A specific permission was obtained as will be indicated from the communication of the Director General Health Services, Haryana dated 1st January, 1997 to Principal Medical Officer, General Hospital, Karnal according approval to the petitioner to undertake journey from Karnal to Escorts Heart Institute & Research Centre, New Delhi for medical treatment. The bill of the petitioner for medical treatment was accordingly forwarded to Director, C.G.H.S. Ministry of Health and Family Welfare for post facto approval. In this background it may not be understood how the claim of the petitioner can be denied in the facts and circumstances of the present case. The petitioner was entitled to take steps for self preservation and was advised to undergo surgery at Escorts Heart Institute & Research Centre, New Delhi. ..."
(Emphasis added) 25.1 After placing reliance upon the decisions of the Supreme Court in Surjit Singh case (AIR 1996 SC 1388) and Mohinder Singh Chawla case (AIR 1997 SC 1225), it was further observed:-
"8. The right to health is an integral part to life and it was the constitutional obligation of the State to provide the health facilities and the Government Servant is entitled to reimbursement of all expenses incurred by him on specialised treatment after his case was referred to a specialised hospital as was the case of the petitioner in the present case.
9. In the present case the petitioner has been granted sanction for being treated in Escorts Heart Institute and Research Centre, New Delhi and in this background it is not possible to appreciate the stand of the Government that since the petitioner was not covered by C.G.H.S. scheme he was not entitled to any reimbursement when the Government itself had not framed any regulations and laid any criteria to decide the case of pensioners staying in non-C.G.H.S. areas. The basic contentions of the respondent that the petitioner was not eligible for reimbursement of his medical claim under Central Services (Medical Attendance) Rules nor he was eligible for C.G.H.S. facilities since he had not enrolled himself as a C. G. H. S. beneficiary though such facilities were not available in Karnal is clearly misconceived. The petitioner does not cease to be a pensioner as having retired from Central Government service and, therefore, it cannot be said that he will be entitled to no reimbursement on the above grounds. The Government itself is not clear with regard to the applicability of rules. This will be indicated from reading of the following material which has been placed on record:-
"FACILITIES AVAILABLE FOR RETIRED GOVERNMENT OFFICIALS.
1. Even though C.G.H.S. facilities are at present available only at specified places and it may not be possible for the Pensioners/Family Pensioners living away from these places to avail of the facilities on day-to-day basis, it may be in the interest of Pensioners/Family Pensioner to enroll themselves as beneficiaries of the C.G.H.S. so that at least in the case of Major ailment/Major Surgery, they will be able to come to the C.G.H.S. station to avail of these facilities if and when such a need should arise.
(Authority:- Para 1.4 of O.M.No.22/1/90-P & P.W(K) dated 17-12-90 of Department of Pension and Pensioners' Welfare, communicated in Ministry of Finance (Department of Revenue) F.No.12/165/90-Coord (Circular No.15/91) dated 21-1-1991)
2. With effect from 1-12-1997 fixed Medical allowance of Rs.100/- P.M. granted to Central Government Pensioners/ Family Pensioners residing in areas not covered by C.G.H.S. for meeting expenditure on day-to-day medical expenses that do not require hospitalisation.
(Authority:- O.M.No.45/57/97-P& PW(K) dated 19-12-97 of Government of India, Department of Pension and Pension Welfare, New Delhi)
3. Consequent on the recommendations of the Vth Pay Commission, Ministry of Health and Family Welfare, New Delhi had stated that there is no objection to the extension of the "Central Services (Medical Attendance) Rules" to the Central Government.
Pensioners residing in Non-C.G.H.S. areas. The Department of Pension and Pensioners Welfare had been directed to work out the modalities for the implementation of Rules in consultation with the inistries/Departments prior to the measure being introduced to avoid any hardships to the pensioners. So far no orders have been issued.
(Authority: O.M.No.S14025/4/96. MS dated 5-6-98 of Government of India, Ministry of Health and Family Welfare, New Delhi).
Sd/-
A.B.Kamalesh Kumar) Chief Accounts Officer Custom & Central Excise New Delhi."
10. The Government has, therefore, on the above basis does not seem to have worked out any criteria for reimbursement in such cases but are still examining the question of granting medical facilities to the beneficiaries who are settled in non-C.G.H.S. areas."
(Emphasis added)
26. In MAHENDRA PAL v. UNION OF INDIA AND OTHERS [117 (2005) DLT 204], the petitioner applied for becoming a member of the Central Government Health Scheme. Reimbursement was not given on the ground that the petitioner was not a member of the Health Scheme when he received the treatment. Such contention was rejected by the singe Judge.
27. In GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI THROUGH SECRETARY, DIRECTOR OF EDUCATION AND ANOTHER v. SHRI SO DUTT SHARMA [118 (2005) DLT 144), the person became the member of the Scheme after having undergone the operation. It was held that even an employee contributes after availing medical facilities, he is entitled to reimbursement.
28. In AIR 1994 Orissa 251 (JUSTICE SACHIDANANDA ACHARYA AND OTHERS v. UNION OF INDIA AND OTHERS), Justice G.B. Patnaik, as His Lordship then was, while considering the question of extension of medical facilities to the retired Judges of Orissa High Court, speaking for the Division Bench observed:-
6. . . . In our considered opinion, the opposite party Union Government is not entitled to deny the rights of a retired High Court Judge to get the medical facilities conferred upon him under section 23D of the Act by deciding that only those retired Judges residing in the 15 cities would be entitled to and not others. As a necessary corollary, the further conclusion would be that the Union Government has failed to discharge its obligation by not providing for the medical facilities in favour of the retired Judges of the High Court those who are not residing in the 15 cities referred to earlier, even though they are entitled to the same under Section 23D of the Act. .
7. . . . In the case in hand, the grievance is not that the law is discriminatory, but the grievance is that in implementing the law, more particularly Section 23D, the executive action is discriminatory. We find sufficient force in the aforesaid grievance of the petitioners. When certain benefits have been conferred on the retired Judges of the High Courts as a part and parcel of their service conditions, and in conferring that benefit if the executive Government takes a decision by which only some of those get the facilities and others do not, then such decision of the executive Government cannot but be held to be discriminatory in nature. . . . We have, therefore, no hesitation to come to the conclusion that the executive decision in question in the case in hand brings out gross discrimination in the matter of implementing the service conditions of the retired Judges contained in Section 23-D of the High Court Judges (Conditions of Service) Act by conferring the same on those who are residing in the 15 cities and not conferring the same on those who are residing outside those 15 cities.
8. In this connection it would be further appropriate to examine as to whether there is any reasonable nexus between those who are residing in those 15 cities and thereby are getting the relief and those who are not residing in those cities and consequently are being denied of their rights. In the counter affidavit filed by the Union Government, no nexus has been indicated and a bald assertion has been made that the Central Government Health Scheme has been in operation in 15 cities only and not in any other places. It is true that Article 14 does not require any scientific classification or logical perfection, but the classification, if any, must be a reasonable one to the satisfaction of the Court and there must be a reasonable relation between the distinction made and the object of such distinction. A classification ipso facto is not enough, but the classification must be based on a reasonable ground which is relevant to the object of a legislation. The Supreme Court has laid down that when any action is challenged as violative of Article 14, it would be appropriate to examine as to the underlying policy and object intended to be achieved by the provision in question and if there has been any differentiation in its application, then if there is any rational nexus or relation with the avowed policy and object. If the impugned action of the executive Government is examined from the aforesaid stand-point, we see no justification on the part of the executive Government to deny the statutory entitlement of a retired Judge of a High Court to receive medical facilities under Section 23-D of the Act merely because he does not reside in any of the 15 cities where the C.G.H. Scheme is in operation. . . . .
9. In view of our conclusions, as aforesaid, the next question that crops up for our consideration is what directions the Court can give in the facts and circumstances of the present case and having given our anxious consideration to the matter, we dispose of these applications with the following directions :-
(i) A mandamus be issued requiring the opposite parties to make suitable provisions for implementing the benefits conferred upon the retired Judges of the High Courts, more particularly the retired Judges of this Court which they have acquired under Section 23-D of the High Court Judges (Conditions of Service) Act.
(ii) Until such action is taken, the retired Judges of this Court may be granted the facilities of availing the C.G.H. Scheme at Calcutta by getting their names registered in any of the dispensaries in Calcutta where the C.G.H. Scheme is functioning in accordance with the Ministry of Health and Family Welfare Department decision of July, 1987, even though the petitioners may not be residing in the city of Calcutta;
(iii) The opposite parties, more particularly, opposite party No.3, may also reconsider the scheme evolved by the Ministry of Health bearing in mind the unanimous resolution of the Chief Justices Conference, the recommendations of the Arrears Committee referred to in the letter of the Chief Justice of India, dated 17th of February, 1992, to the Minister, Law and Justice, and the difficulties on the part of the retired Judges in getting any medical facilities indicated in the letter of the Chief Justice of India.
These writ applications are disposed of with the aforesaid directions and observations."
29. What then is the upshot of the above discussion ?
Keeping in view the relevant Rules and Orders issued from time to time and also the overwhelming sentiments expressed in various pronouncements of the Supreme Court and different High Courts, our conclusions are as follows :
(1) Though the recommendation of the 5th Pay Commission for extending the benefits available to the employees under CS (MA) Rules, 1944, appears to have been accepted on principle, the modalities have not been worked out and CS (MA) Rules have not been formally made applicable to the retired employees.
(2) Technically speaking, the benefit of CGHS for reimbursement of expenses incurred as indoor patient can be availed by a retired employee only if he becomes or continue as a member by making contribution.
(3) Denial of CGHS Card to a retired employee on the ground that he has retired from a place not covered under CGHS is improper.
(4) Though theoretically a retired employee can opt for treatment as indoor patient in a distant place covered by CGHS, for all practical purposes such a possibility is extremely remote. In other words, for all practical purposes, retired employees residing in remote areas are deprived of the opportunity of availing benefits of CGHS as indoor patient.
(5) The payment of monthly allowance of Rs.100/- to retired employees is only to provide for day-to-day treatment, where outdoor facilities are not available. However, payment of such allowance cannot be a ground to deny the benefit of reimbursement for medical expenses incurred as indoor patient.
(6) Though right to live or lead the life, particularly after retirement, can be considered as a Part of Article 21 of the Constitution, the content and extent of such right would depend upon various factors.
(7) Denial of benefits contemplated under CS (MA) Rules or CGHS to retired employees on the ground that such Rules are not applicable or on the ground that the retired employees are residents of areas not covered by CGHS, is prima facie contrary to the spirit of Articles 14 and 21 of the Constitution.
(8) The recommendations of the 5th Pay Commission and the subsequent policy decision of the Ministry of Health as in the Office Memorandum dated 5.6.1998 are reasonable, deserving acceptance and implementation unless there are any insurmountable hurdle.
(9) The various retired employees had undergone the expensive treatment as indoor patients at a time when the normal understanding was the applicability of CS (MA) Rules to retired employees as per Office Memorandum dated 5.6.1998 and thus all such persons had at least a legitimate expectation of being reimbursed. All efforts should be made to fulfill such legitimate expectation, if not as a matter of absolute legal right, at least as a matter of grace.
30. In view of the above conclusion, it has to be decided as to the extent and content of medical facilities to be extended to the retired Central Government officials who do not reside within the areas covered under the CGHS and the nature of directions to be issued.
31. It has to be remembered that keeping in view such difficulty on the part of the retired Government employees, 5th Pay Commission had rightly recommended that the facilities available similar to CS (MA) Rules, can be made available to such persons. It is no doubt true that such Rules are yet to be amended and Note-2 excludes the applicability of such Rules to the retired employees. We are conscious of the legal position that the High Court in exercise of jurisdiction under Article 226 of the Constitution, cannot direct that a particular Statute or particular statutory Rule should be enforced. However, since such recommendations had been made at a very distant point of time by 5th Pay Commission and since as a matter of policy the Ministry of Health and the Department of Pension and Pensioner's Welfare had no objection, or rather had agreed to the extension of such facility to the retired Government employees, a direction can be issued to the Central Government to consider the said aspect and to extend the facilities available either under CGHS or CS (MA) Rules, to the unfortunate group of pensioners who per force have to live in an area coming outside the purview of CGHS so that in case of hospitalisation and treatment as an indoor patient in respect of serious diseases contemplated in CS (MA) Rules or CGHS, a reasonable reimbursement at par with CGHS or CS (MA) Rules, as the case may be, can be made available.
32. We have thought it fit to issue the aforesaid direction keeping in view the observation of the Supreme Court and other Courts in several cases that right to health care is a fundamental right recognised under Article 21 and also with a view to ensure equality between the retired employees, who are residing in and around the CGHS covered areas and those who are residing in places which are far-off from CGHS covered areas. Such appropriate decision should be taken as expeditiously as possible, preferably within a period of six months from the date of the present direction.
33. We further direct that purely as a matter of legitimate expectation or even grace, if not as a matter of right, the claim for reimbursement made by various applicants should be allowed in the manner indicated by the Tribunal, as we feel the Tribunal by giving such directions has rendered substantial justice and, in exercise of jurisdiction under Article 226 of the Constitution, we are not inclined to interfere with such orders which have the effect of advancing the cause of substantial justice and which have the effect of abjuring the vice of discrimination between the retired Central Government employees who are covered under CGHS by fortunately and fortuitously residing in areas covered under CGHS and their less fortunate brethren who after retirement have settled down in places far away from the areas covered under the CGH Scheme. Such reimbursement should be effected within a period of sixty days from the date of receipt of the present order. The question of any deduction required to be made towards contribution for availing the facility of CGHS., is left to the discretion of the concerned Department.
34. With the above directions, all the writ petitions filed by the Union of India are disposed of. So far as W.P.No.8822 of 2002 filed by the retired employee claiming interest is concerned, we do not see any reason to modify the order of the Tribunal refusing to grant interest. Such writ petition is accordingly dismissed. There would be no order as to costs in any of the writ petitions.
35. In view of the directions contained in paras 31 to 33, the Registry is directed to mark a copy of this judgment to The Secretary to the Government, Ministry of Health, Government of India, New Delhi, for compliance.
dpk To
1. The Registrar, Central Administrative Tribunal, High Court Buildings, Chennai 600 104.
2. The Union of India Rep. By the Deputy General Manager (South West), Chennai Telephones, Dept. of Telecommunication, Office of the Chief General Manager, 10, Millers Road, Chennai 600 010.
3. The Secretary to Government, Ministry of Health, Government of India, New Delhi
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