Full Judgment Text
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CASE NO.:
Writ Petition (civil) 210 of 1999
PETITIONER:
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS & ORS.
RESPONDENT:
UNION OF INDIA & ORS.
DATE OF JUDGMENT: 22/08/2006
BENCH:
Y.K. SABHARWAL CJI & K.G. BALAKRISHNAN & S.H. KAPADIA & C.K. THAKKER & P.K.I. BALASUBRAMANYA
N
JUDGMENT:
JUDGMENT
Delivered by:
C.K. THAKKER, J.
C.K. THAKKER, J.
This petition under Article 32 of the Constitution is
filed as Public Interest Litigation (PIL) by petitioner-
Confederation of ex-serviceman Associations for an
appropriate writ directing the respondent-Union of India
to recognize the right of full and free medicare of ex-
servicemen, their families and dependents treating such
right as one of the fundamental rights guaranteed under
the Constitution of India. A prayer is also made to direct
the respondents to take necessary steps to ensure that
full and free medicare is provided to ex-servicemen, their
families and dependents on par with in-service defence
personnel. A further prayer is also made to extend such
medicare for all diseases including serious and terminal
diseases, even if treatment for those diseases is not
available at Military Hospitals.
The case of the petitioner is that there are certain
ex-servicemen Associations which have formed a
Confederation in furtherance of common cause for
welfare of ex-defence personnel.
They are;
(i) Air Force Association;
(ii) India Ex-services League;
(iii) Naval Foundation;
(iv) Disabled War Veterans (India); and
(v) War Widows Association.
Aims and objects of the Confederation have been
set out in the Memorandum of Understanding (MoU)
produced at Annexure P-1. According to the petitioner,
there are approximately 15 lakhs ex-servicemen in the
country alongwith 45 lakhs dependents and family
members. The petitioner has no information regarding
medical facilities provided to ex-servicemen prior to the
Second World War (1939-44). After the Second World
War, however, certain information is available. A book
edited by Mr. Bishweshwar Dass was published titled
"Combined Inter-services : Historical Section : India and
Pakistan", wherein it has been stated that the
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Government had accepted full responsibility for medicare
of disabled ex-servicemen as also for their rehabilitation.
Disabilities, which were categorized, were as
follows:
(i) Loss of limb or use of limb;
(ii) General medical and surgical disability;
(iii) Loss of speech;
(iv) Deafness;
(v) Blindness and material impairment of vision;
(vi) Pulmonary Tuberculosis;
(vii) Mental diseases.
The petitioner further stated that in 1962, more
medical facilities were provided to ex-army personnel. In
1983, regulations were framed known as Regulations for
Medical Services of Armed Forces which restricted
entitlement to disability for which pension had been
granted. No treatment was authorized for serious
diseases, like pulmonary tuberculosis, leprosy and
mental diseases even if such diseases were attributable
to Army Services if treatment of such diseases was not
ordinarily available from service sources.
According to the petitioner, various Committees
were constituted to examine the issue as to availability of
medical facilities to members of Armed Forces. In 1984,
a High Level Committee headed by the then Rajya
Raksha Mantri Shri K.P. Singh Deo was set up which
conducted thorough study of the problems of ex-defence
personnel for the first time. The Committee
recommended enhancement of facilities and
improvement of medical services to ex-servicemen.
Between 1986 and 1990, several steps had been taken in
the direction of extending more benefits to ex-servicemen
through various committees and commissions, such as,
Dharni Committee (1986), CDM Study Report (1987),
Report on Army Logistics Philosophy (1987), Verma
Committee (1988), Narsimhan Committee (1990), Vijay
Singh Committee (1990), etc. In 1993, Lt. Gen. N. Foley
Committee again examined the problem of medicare to
ex-servicemen. It noted with concern the manner in
which ex-servicemen had been treated in providing
medical facilities which were shocking. It observed that
ex-servicemen were virtually neglected by the
Government. It felt that there was a feeling of frustration
in ex-servicemen. It, therefore, suggested that there
should be no discrimination of treatment between in-
service personnel and ex-servicemen. The Committee
made certain recommendations both on long term basis
as well as on short term basis. Again, the Fifth Pay
Commission examined the medical and other facilities to
pensioners of the Central Government employees and
also to ex-servicemen. The Commission noted the
expenditure incurred on various categories of Central
Government employees, and after examining the entire
issue, recommended that the Ministry of Defence should
embark at once for expansion of medical facilities to ex-
servicemen. It suggested creation of ex-servicemen wards
in Civil Hospitals in liaison with State Governments. It
also recommended Ministry of Health and Family Welfare
to set up Veteran’s Hospitals where a concentration of
civil and military pensioners existed. In addition, it
proposed a medical allowance of Rs.100 per month for
ex-servicemen living in rural areas who could not avail
themselves of military/civil hospital facilities.
According to the petitioner, the Pay Commission
missed the basic thrust of the requirement of providing
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free and full medicare to ex-servicemen. Since the
Regulations relating to medical services to Armed Forces
expressly excluded the treatment at Government
hospitals to ex-servicemen for serious diseases like
pulmonary tuberculosis, leprosy and mental diseases,
any amount of facilities would not be sufficient to ex-
servicemen suffering from such diseases. The
Regulations were also silent about modern serious and
terminal diseases like AIDS, Cancer, etc. and no
provision was made for expenses on essential treatments
like bypass surgery, laparoscopy, endoscopy, etc.
The petitioner has also stated that after 1997,
various efforts were made by the member-Associations to
get more benefits to ex-servicemen. On June 12, 1997,
Air Marshal D.S. Sabhikhi, Senior Vice President of Air
Force Association submitted a detailed representation to
the Defence Ministry requesting to take action on war
footing for setting up Veteran’s Hospitals, augmentation
of Special Medical Inspection Rooms (MIRs), Dental
Centres, etc., for ex-servicemen. Brig. Dal Singh (Retd.),
President of Indian Ex-services League also wrote a letter
to the Defence Secretary requesting him to intimate the
actions taken by the authorities on various judgments of
this Court. Similar representation was made by Vice
Admiral S.K. Chand (Retd.), President of Navy
Foundation, Delhi. Attention of the Government was
invited by political leaders and reference was made to
letters of Shri B.K. Gadhvi, Member of Lok Sabha to the
Defence Minister as also by Shri Jaswant Singh, another
M.P. The petitioner has referred to letters by Air Chief
Marshal S.K. Kaul (Retd.) in 1997-98 and by Air Marshal
D.S. Sabhikhi, Senior Vice President of Air Force
Association.
The grievance of the petitioner is that though
several attempts had been made by the Associations, the
Government of India had never taken the matter
seriously as regards the medical services to be provided
to ex-servicemen. Though they have a valuable right of
full and free medicare, which is a fundamental right, no
concrete and effective steps had been taken by the
respondents which constrained them to approach this
Court by invoking Article 32 of the Constitution.
According to them, keeping in view the services rendered
by ex-defence personnel and the diseases sustained by
them, they are entitled to necessary medical facilities. It
was also their case that free and full medical facilities is
part and parcel of their fundamental rights guaranteed
by Part III of the Constitution as also covered by
Directive Principles in Part IV of the Constitution. In
several cases, this Court has held that such facilities
must be provided to Government employees, past and
present. According to the petitioner, such facilities are
provided to Government employees and also to ex-
servicemen. Refusal to extend similar medical benefits to
ex-defence personnel is thus arbitrary, discriminatory,
unreasonable and violative of Articles 14, 16, 19 and 21
of the Constitution.
The petition came up for preliminary hearing before
a two Judge Bench on May 10, 1999 and the following
order was passed:
"Issue Rule.
Reliance is placed upon paragraph 25 of the
decision of a three Judge Bench in Consumer
Education and Research Centre and Ors. v.
Union of India and Ors. (1995) 3 SCC 42.
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Since we are, prima facie, disinclined to
accept the correctness of the broad
observations in that paragraph, the matter
shall be placed before the Bench of five
learned Judges."
From the above order, it is clear that the two Judge
Bench had some doubt about the correctness of wider
observations in Consumer Education & Research Centre.
The matter was, therefore, ordered to be placed before a
Bench of five Judges. By an order dated July 20, 2004,
however, a three Judge Bench, relying on a decision
rendered by the Constitution Bench of this Court in
Pradip Chandra Parija & Ors. v. Pramod Chandra Patnaik
& Ors., (2002) 1 SCC 1 observed that initially the matter
was required to be heard by a Bench of three Judges.
Accordingly, the matter was ordered to be set down for
hearing before a three-Judge Bench. On November 22,
2005, a three Judge Bench perused the earlier orders,
heard the learned counsel for the parties for some time
and the issue involved and was satisfied that the writ
petition was required to be heard by a Bench of five
Judges. Accordingly, an order was passed directing the
Registry to place the papers before Hon’ble the Chief
Justice for necessary action. That is how, the matter is
placed for hearing before us.
A counter affidavit by Mr. V.K. Jain, Under
Secretary, Ministry of Defence on behalf of Union of India
was filed on January 24, 2002, raising inter alia,
preliminary objection as to maintainability of writ
petition as also objections on merits. A technical
objection was raised by the respondents that the petition
was not maintainable as the petitioner-Associations were
not registered associations and, therefore, had no locus
standi. On Merits, it was submitted that ex-servicemen
were provided Assured In-patient and Out-patient
Treatment as specified in the Regulations of 1983 within
the available resources of the State. According to the
Union, full and free medical aid for ex-servicemen cannot
be claimed as a matter of right. It has never been
claimed for more than fifty years of independence. Ex-
servicemen and their dependents are entitled to medical
treatment in Military Hospitals. They are also given
financial assistance from the Group Insurance Scheme
and from the Armed Forces Flag Day Fund for treatment
outside Military hospitals. On the recommendations of
Fifth Pay Commission, the Government had sanctioned
fixed medical allowance of Rs.100 per month to those ex-
servicemen and their families who reside in the areas
where facilities of Armed Forces hospitals/clinics are not
available. Over and above those facilities, other facilities
were also provided, such as Mobile Medical Teams,
Medical Vans, Army Group Insurance Medical Benefit
Scheme, Army Dialysis Centres, etc. It was then stated
that the Government had extended certain medical
amenities to ex-servicemen and their dependents within
the available sources. Ex-servicemen and their family
members are given free out-patient treatment in nearest
Military Hospitals and are also given medicines.
Regarding Military hospitals, it was stated by the
deponent that such hospitals are essentially meant for
treatment of in-service defence personnel for whom it is
a service requirement to ensure defence preparedness.
Ex-servicemen are provided in-patient treatment in
Military Hospitals, subject to the availability of beds
within the authorized strength and without detriment to
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the needs of in-service defence personnel. It was,
however, conceded that the scheme did not cover
treatment for pulmonary tuberculosis, leprosy, mental
diseases or malignant diseases.
As to discrimination, it was stated that the case of
ex-servicemen cannot be compared with retired Civilian
Central Government employees inasmuch as medical
facilities under Central Government Health Scheme
(’CGHS’ for short) are contributory i.e., a retired Central
Government servant who is a member of CGHS before
retirement has option to continue to be covered by the
said scheme. The petitioners, therefore, cannot claim
similar benefits since they are not similarly situated.
Regarding in-service defence personnel, it was stated
that the case of the petitioners cannot be compared with
in-service defence personnel as they are different,
distinct, independent and form different class. It was,
therefore, submitted that the grievance of the petitioner
is not well founded and they are not entitled to the reliefs
claimed.
A rejoinder affidavit on behalf of the petitioner was
filed to the affidavit in reply controverting the facts
stated and averments made in the counter affidavit,
reiterating the assertions in the petition. In addition, it
was stated that on September 13, 1999, Assistant Chief
of Personnel (P&C) of the Indian Navy had informed the
then President of the Confederation that the Committee
had been constituted under the direction of the Defence
Minister to look into the problems of medicare of ex-
servicemen. Similar information was also communicated
by the Under Secretary of Ministry of Defence vide letter
dated September 20, 1999 and yet nothing was stated on
that point by the Union of India in the counter affidavit
already filed.
On July 20, 2004, this Court granted I.As. of All
India Defence Services Advocates Association and All
India Ex-Services Welfare Association seeking
impleadment to the limited extent of addressing the
court to raise such points not covered by the
submissions of the learned counsel for the petitioner.
It was also stated at the Bar that during the
pendency of the writ petition, the Government of India
had introduced a scheme known as "Ex-Servicemen
Contributory Health Scheme" (ECHS) partly taking care
of grievances raised by the petitioner and intervenors.
The respondents sought time to place the scheme on
record within four weeks. Accordingly, by an additional
affidavit dated October 4, 2004, ECHS has been placed
on record by the respondents. The scheme is a
contributory scheme for ex-servicemen and extends
certain benefits to ex-servicemen on payment of
contribution.
We have heard learned counsel for the petitioner,
intervenors and for the respondent-authorities.
The learned counsel for the petitioner and
intervenors submitted that considering the hard and
arduous nature of work performed by defence personnel
and taking into account the exigencies of service, it was
obligatory on the respondents to provide free and full
medical facilities to them even after retirement. It was
submitted that such facilities are provided to defence
personnel who are in service. They are also extended to
civilians, even after retirement. In such matters,
expenses would be immaterial. But even if the said fact
is relevant and considered material, it is a negligible
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amount compared to the services rendered by them. The
impugned action, therefore, is arbitrary, discriminatory,
unreasonable and violative of fundamental rights
conferred by the Constitution. It was also urged that
several Committees, Commissions and Expert Bodies
considered the plight of ex-servicemen. Various
suggestions were made and recommendations were
forwarded to the respondents but no adequate steps
have been taken by them. The doctrine of ’legitimate
expectation’ was also pressed in service contending that
most of the defence personnel had to retire at a
premature age either because of injuries sustained or
occupational diseases suffered by them. It is, therefore,
the right of ex-servicemen to get adequate free and full
medical treatment. Apart from fundamental rights
guaranteed by Part III of the Constitution, it is the duty
of the respondents to implement Directive Principles of
State Policy under Part IV of the Constitution.
The counsel submitted that serious and terminal
diseases cannot be excluded from the category of
medical services to be provided to ex-servicemen. It was
stated that in past, there were no sufficient number of
Military hospitals/clinics. Due to inadequate
infrastructure, paucity of staff, availability of sufficient
means and other considerations, it was not possible for
the respondents to provide medical facilities for serious
diseases but in 21st century, when Medical Science has
much developed and huge infrastructure is available,
there is no earthly reason to deprive ex-servicemen from
getting medical treatment for those diseases.
It was finally submitted that no doubt, recently a
scheme has been framed under which medical facilities
have been ensured to ex-servicemen. But they are
required to pay contribution since the scheme is
’contributory health scheme’. To that extent, therefore,
the scheme is objectionable and is violative of
fundamental rights of ex-servicemen. It is also
inconsistent with and contrary to various decisions of
this Court wherein it has been held that to get free
medical service is a fundamental right of citizens. On all
these grounds, it was submitted that the petition
deserves to be allowed by issuing appropriate directions
to the respondents to provide full and free medical
facilities to ex defence personnel and their family
members.
The learned counsel for the Union of India, on the
other hand, submitted that the action of the Government
cannot be held arbitrary, unlawful or otherwise
unreasonable. He conceded that valuable services have
been rendered by retired army-men when they were in
service. But submitted that the State after taking into
account all relevant aspects, formulated a policy for
providing medical facilities to its employees as also to ex-
employees. According to the counsel, defence personnel
and civil personnel cannot be compared as they belong
to different class. Article 14, therefore, has no
application. Likewise, defence personnel in-service and
defence personnel out of service, i.e. who have retired,
cannot be placed in the same category and if different
standards are fixed for providing medical facilities to
defence personnel in service on one hand and to retired
defence personnel on the other, it cannot be said that
the State has acted arbitrarily or practised
discrimination between the two classes who are not
similar and do not stand on the same footing. It was
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submitted by the respondents that free medical service
to all its employees in- service or out-of service is never
held to be a fundamental right guaranteed by the
Constitution and even if there are some observations to
that effect, they are either ’obiter dicta’ or ’passing
observations’ and do not lay down correct law. Every
State has limited financial means and resources. And
keeping in view financial capacity and available means,
it has to undertake its obligations of providing social
services including medical facilities to its employees in-
service or retired. So far as ex-servicemen are concerned,
the counsel submitted that recommendations and
suggestions of various Committees were considered by
the Union of India and more and more benefits had been
extended from time to time. Regarding medical facilities
in serious and terminal diseases, it was submitted that
in past, such facilities were either not available at
Military hospitals/clinics or there were no sufficient
number of hospitals/clinics and hence they could not be
provided to ex-servicemen. The position was thereafter
substantially changed. In several hospitals/clinics now
such facilities are available. It was also stated that
financial assistance is being given to ex-servicemen in
certain cases. In 2002, the Government has prepared
ECHS for full medical services. True it is that the scheme
is contributory. But considering the amount of
contribution which is ’one time payment’ and is really
negligible, it cannot be contended that the action is
arbitrary, irrational or in the nature of deprivation of ex-
servicemen from getting necessary medical services. If
ex-servicemen intend to take benefit of the scheme, they
may exercise option, may become members and may
avail benefits thereunder by paying contribution on the
basis of the amount of pension received by them. In that
case, they would not be entitled to financial assistance
given to them. If they are not willing to be members of
the scheme, it is not necessary for them to pay the
amount of contribution but they would not be entitled to
medical benefits under the scheme. It was also stated
that this is to a limited class of employees who have
retired prior to January 1, 1996 as thereafter, the
scheme has been made applicable and contribution has
been charged from all the employees. It was, therefore,
submitted that no case can be said to have been made
out by the petitioner so as to hold the action of the
respondents unlawful or otherwise unreasonable and the
petition deserves to be dismissed.
We have given anxious and thoughtful
consideration to the rival contentions raised by the
parties. So far as the preliminary objection regarding
maintainability of the petition is concerned, it may be
stated that the petitioner has asserted in the petition
that it is a Confederation of five ex-servicemen
Associations formed in furtherance of common cause.
The aims and objects of the Confederation have also
been annexed as set out in the MoU (Annexure ’P-1’). In
the affidavit in reply filed by the Under Secretary working
with the Ministry of Defence, it was stated that he is ’not
aware’ of the existence of the petitioner organization. He,
however, stated that the organization ’does not seem’ to
be registered body to represent the cause of ex-
servicemen. The rejoinder affidavit unequivocally states
that the objection raised by the Union of India is
incorrect. The Confederation was registered under the
Societies’ Registration Act, 1860. Likewise, all
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Associations which constitute the Confederation are
similarly registered individually. It is further stated that
Air Force Association and Indian Ex-Services League are
even recognized by the Ministry of Defence, Union of
India. It, therefore, cannot be said that the petitioner-
Confederation is not registered and the petition filed is
not maintainable. In view of the fact that some of the
Associations have been recognized even by the Ministry
of Defence, the deponent ought not to have raised the
objection regarding maintainability of the petition
without ascertaining full facts and particulars. We leave
the matter there holding the petition maintainable.
We are also satisfied that the contention of the
respondent is even otherwise not tenable at law. A
similar point came up before a Constitution Bench of
this Court in the well known decision in D.S. Nakara v.
Union of India, (1983) 1 SCC 305. There also, one of the
petitioners was a Society registered under the Societies’
Registration Act, 1860. It approached this Court for
ventilating grievances of a large number of old and infirm
retirees who were individually unable to approach a
court of law for redressal of their grievances. This Court
held locus standi of the Society ’unquestionable’. In the
present case, apart from the fact that a larger public
issue and cause is involved, even individually, all
Associations are registered Associations of ex-
servicemen. The petitioner-Confederation representing
those Associations which is also registered, can certainly
approach this Court by invoking the provisions of Part III
of the Constitution. We, therefore, reject the preliminary
objection raised by the respondents and hold that the
petitioner-Confederation has locus standi to file the
petition.
In our view, however, maintainability of petition
and justiciability of issues raised therein are two
different, distinct and independent matters and one
cannot be mixed or inter-linked with the other.
It was strenuously contended that when in-service
defence personnel have been provided full and free
medical services, refusal to extend similar facilities and
benefits to ex-servicemen would result in discriminatory
treatment, violative of Article 14 of the Constitution. It
was also urged that members of civil services have been
provided all medical facilities, irrespective of the fact
whether they are in service or have retired. In the
submission of the counsel, if in-service defence
personnel have been provided full and free medical
services, the same benefit should be extended to retired
defence personnel. Likewise, when employees from civil
services have right to get full and free medical facilities,
the same yardstick must be applied to retired defence
personnel as well. Retired civil servants and retired
defence personnel stand on one and the same footing.
Granting relief in favour of one class and denying same
or similar relief in favour of another class would result in
unequal treatments to equals and would infringe Article
14 of the Constitution. The action of the respondents,
therefore, deserves interference by this Court.
We are unable to uphold the argument advanced
by the petitioners for more than one reason. It is no
doubt true, that Article 14 guarantees equality before the
law and confers equal protection of laws. It clearly
prohibits the State from denying persons or class of
persons equal treatment provided they are equals and
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are similarly situated. In our opinion, however, the basis
on which the argument proceeds is fallacious and ill-
founded. It is well established that Article 14 seeks to
prevent or prohibit a person or class of persons from
being singled out from others situated similarly. It thus
prohibits discrimination or class legislation. It, however,
does not prohibit classification if otherwise it is legal,
valid and reasonable.
Before more than five decades, a Constitution
Bench of this Court was called upon to consider a
similar contention in the well known decision in State of
West Bengal v. Anwar Ali Sarkar & Another, (1952 SCR
284 : AIR 1952 SC 75). In that case, validity of certain
provisions of the West Bengal Special Courts Act, 1950
was challenged on the ground that they were
discriminatory and violative of Article 14 of the
Constitution. Dealing with the contention, S.R. Das, J.
(as His Lordship then was), made the following pertinent
observations which were cited with approval in several
cases;
"It is now well established that while
article 14 is designed to prevent a person or
class of persons from being singled out from
others similarly situated for the purpose of
being specially subjected to discriminating and
hostile legislation, it does not insist on an
"abstract symmetry" in the sense that every
piece of legislation must have universal
application. All persons are not, by nature,
attainment or circumstances, equal and the
varying needs of different classes of persons
often require separate treatment and, therefore,
the protecting clause has been construed as a
guarantee against discrimination amongst
equals only and not as taking away from the
State the power to classify persons for the
purpose of legislation. This classification may
be on different bases. It may be geographical or
according to objects or occupations or the like
Mere classification, however, is not enough to
get over the inhibition of the Article. The
classification must not be arbitrary but must
be rational, that is to say, it must not only be
based on some qualities or characteristics
which are to be found in all the persons
grouped together and not in others who are left
out but those qualities or characteristics must
have a reasonable relation to the object of the
legislation. In order to pass the test, two
conditions must be fulfilled, namely, that the
classification must be founded on an
intelligible differentia which distinguishes those
that are grouped together from others and that
that differentia must have a rational relation to
the object sought to be achieved by the Act.
The differentia which is the basis of the
classification and the object of the Act are
distinct things and what is necessary is that
there must be a nexus between them. In short,
while the Article forbids class legislation in the
sense of making improper discrimination by
conferring privileges or imposing liabilities upon
persons arbitrarily selected out of a large
number of other persons similarly situated in
relation to the privileges sought to be conferred
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or the liability proposed to be imposed, it does
not forbid classification for the purpose of
legislation, provided such classification is not
arbitrary in the sense I have just explained."
(emphasis supplied)
Again, in Budhan Choudhry v. State of Bihar,
[(1955) 1 SCR 1045 : AIR 1955 SC 191], after
considering earlier decisions, this Court stated;
"It is now well-established that while article
14 forbids class legislation, it does not forbid
reasonable classification for the purposes of
legislation. In order, however, to pass the test
of permissible classification two conditions
must be fulfilled, namely, (i) that the
classification must be founded on an
intelligible differential which distinguishes
persons or things that are grouped together
from others left out of the group and (ii) that
that differentia must have a rational relation
to the object sought to be achieved by the
statute in question. The classification may be
founded on different bases; namely,
geographical, or according to objects or
occupations or the like. What is necessary is
that there must be a nexus between the basis
of classification and the object of the Act under
consideration."
(emphasis supplied)
The principle laid down in Anwar Ali Sarkar and
Budhan Choudhry has been consistently followed and
reiterated by this Court in several subsequent cases.
[See Bidi Supply Co. v. Union of India & Ors., 1956 SCR
267 : AIR 1956 SC 479; Ram Krishna Dalmia v. Justice
Tendolkar, 1959 SCR 279 : AIR 1958 SC 538; V.C.
Shukla v. State (Delhi Administration); 1980 Supp. SCC
249 : AIR 1980 SC 1382; Special Courts Bill, Re, (1979) 1
SCC 380 : AIR 1979 SC 478 : (1979) 2 SCR 476; R.K.
Garg v. Union of India, (1981) 4 SCC 675 : AIR 1981 SC
2138; State of A.P. & Ors. v. Nallamilli Rami Reddi & Ors.,
(2001) 7 SCC 708 : AIR 2001 SC 3616; M.P. Rural
Agriculture Extension Officers Association v. State of M.P.
& Anr., (2004) 4 SCC 646 : AIR 2004 SC 2020].
In our judgment, therefore, it is clear that every
classification to be legal, valid and permissible, must
fulfill the twin-test, namely;
(i) the classification must be founded on an
intelligible differentia which must
distinguish persons or things that are
grouped together from others leaving out
or left out; and
(ii) such a differentia must have rational
nexus to the object sought to be achieved
by the statute or legislation in question.
In our considered opinion, classification between
in-service employees and retirees is legal, valid and
reasonable classification and if certain benefits are
provided to in-service employees and those benefits have
not been extended to retired employees, it cannot be
successfully contended that there is discrimination
which is hit by Article 14 of the Constitution. To us, two
categories of employees are different. They form different
classes and cannot be said to be similarly situated.
There is, therefore, no violation of Article 14 if they are
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treated differently.
Likewise, a classification between defence
personnel and other than defence personnel is also
reasonable and valid classification. Moreover, it is
clarified by the respondents in the counter-affidavit that
for medical facilities provided to retired civil servants,
there is also a scheme known as the Central Government
Health Scheme (CGHS), which is again contributory.
Retired Central Government Servants who are members
of the scheme are covered by the said scheme and they
are provided medical services on payment of specified
amount under the scheme. We, therefore, see no
substance in the argument of the petitioners that the
impugned action in not providing full and free medical
facilities to retired defence personnel infringes Article 14
of the Constitution.
We are also not impressed by the argument that all
medical benefits and facilities must be provided to ex-
servicemen under the doctrine of ’legitimate expectation’.
The doctrine of ’legitimate expectation’ is a ’latest recruit’
to a long list of concepts fashioned by Courts for review
of administrative actions. No doubt, the doctrine has an
important place in the development of Administrative
Law and particularly law relating to ’judicial review’.
Under the said doctrine, a person may have reasonable
or legitimate expectation of being treated in a certain way
by an administrative authority even though he has no
right in law to receive the benefit. In such situation, if a
decision is taken by an administrative authority
adversely affecting his interests, he may have justifiable
grievance in the light of the fact of continuous receipt of
the benefit, legitimate expectation to receive the benefit
or privilege which he has enjoyed all throughout. Such
expectation may arise either from the express promise or
from consistent practice which the applicant may
reasonably expect to continue.
The expression ’legitimate expectation’ appears to
have been originated by Lord Denning, M.R. in the
leading decision of Schmidt v. Secretary of State, [(1969)
1 All ER 904 : (1969) 2 WLR 337 : (1969) 2 Ch D 149]. In
Attorney General of Hong Kong v. Ng Yuen Shiu, [(1983) 2
All ER 346 : (1983) 2 AC 629], Lord Fraser referring to
Schmidt stated;
"The expectations may be based on some
statement or undertaking by, or on behalf of,
the public authority which has the duty of
making the decision, if the authority has,
through its officers, acted in a way that would
make it unfair or inconsistent with good
administration for him to be denied such an
inquiry.
(emphasis supplied)
In such cases, therefore, the Court may not insist
an administrative authority to act judicially but may still
insist it to act fairly. The doctrine is based on the
principle that good administration demands observance
of reasonableness and where it has adopted a particular
practice for a long time even in absence of a provision of
law, it should adhere to such practice without depriving
its citizens of the benefit enjoyed or privilege exercised.
We do not wish to burden our judgment with
several English, American and domestic decisions, since
the proposition of law has not been disputed by the other
side. In our opinion, however, in the instant case, the
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 29
doctrine of legitimate expectation has no application. It
is not even the case of the petitioners that certain
medical facilities which were enjoyed by them in the past
have been withdrawn or revoked. On the contrary, they
have admitted that after independence, because of
several representations made by them and various
efforts, suggestions and recommendations by different
Committees and Commissions, more and more medical
facilities were provided but they were not enough. It was
also their case that in the last few years, situation
regarding infrastructure and staff has been improved.
They have, therefore, prayed that medical facilities which
were not provided in past may also be provided now to
retired defence personnel. Similarly, medical facilities
should also be extended for serious and terminal
diseases. The doctrine of legitimate expectation, in the
fact situation, therefore, cannot be invoked by the
petitioner in the case on hand.
We are equally unimpressed by the submission of
the learned counsel to issue directions or guidelines to
’fill in gaps’ in the exercise of plenary powers.
Undoubtedly, in absence of legislative provisions or
administrative instructions governing the field, this court
may, in appropriate cases, issue necessary directions as
has been done in several cases. [See Delhi Judicial
Service Association v. State of Gujarat, (1991) 4 SCC 106
: AIR 1991 SC 2106 : (1991) 3 SCR 936; D.K. Basu v.
State of West Bengal, (1997) 1 SCC 416 : AIR 1997 SC
610; Visakha v. State of Rajasthan, (1997) 6 SCC 241 :
AIR 1997 SC 3011]. In the instant case, however, a
scheme providing medical facilities to ex-servicemen has
been framed. It has been decided by the Central
Government to extend medical facilities to retired
defence personnel on the basis of ’one time contribution’
which is legal, proper and reasonable. In the
circumstances, the ratio laid down by the Supreme
Court in the above cases does not apply and no
directions need be issued to the respondents.
At the same time, however, so far as the services
provided by the defence personnel is concerned, there
can be no two opinions that they have rendered
extremely useful and indispensable services which can
neither be ignored nor under-estimated. The petitioners
have rightly stated that they have served in the Army, Air
Force and Navy of the Union of India during cream
period of youth putting their lives to high risk and
improbabilities. As a mark of respect and gratitude,
therefore, they must be provided medical services after
retirement. It is indeed true that men and women in
uniform are the pride of the nation and protectors of the
country. It is because of their eternal vigil that ordinary
citizens are able to sleep peacefully every night, for it is
these men and women guarding the frontiers of our
nation that makes our interiors safe. They, therefore, are
entitled to privileged treatment.
It would be appropriate to quote here an epitaph
from the Kohima War Cemetry which conveys eloquently
what our Soldiers, Sailors and Airmen are cheerfully
willing to sacrifice their lives;
"When you go home,
Tell them for us;
For your to-morrow,
We gave our to-day."
The petitioner has made grievance that during war
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and serious situations, defence personnel are
remembered but as soon as grave situation is over, they
are forgotten and ignored. We are reminded what Francis
Quarrels said;
"Our Gods and Soliders we alike adore,
At the time of danger, not before;
After deliverance both are alike requited,
Our Gods forgotten and our Soldiers slighted".
Before more than two decades when the
respondents appointed a High Level Committee under
the Chairmanship of Shri K.P. Singh Deo, Minister of
State, Ministry of Defence to consider problems of ex-
servicemen, it highlighted the difficulties experienced by
ex-servicemen in the light of hard and strenuous work
undertaken by them and exigencies of service in which
they had to discharge their duties. The Committee, while
submitting the report, observed in the Foreword\027
Our Armed Forces have won world wide
renown for their valour, dedication and
devotion. The achievements of the Armed
Forces in varying roles since Independence
are a matter of pride for all of us in the
Country and that of envy of other Nations.
Men from all castes, creeds, religions and
from all parts of India join the Armed Forces
and their integration as a secular
homogeneous and dedicated team is
remarkably total.
The Armed Forces personnel have sterling
qualities of head and heart, courage,
discipline, loyalty and implicit obedience to
orders. They are the guardians of the safety
and honour of the Country and are ever
prepared to sacrifice their lives to preserve the
freedom and sovereignty of the Country. In
addition to their preparedness for war, during
peace time, our Armed Forces have always
risen to the occasion to assist the
Administration during natural calamities and
internal unrest. The sacrifices made by the
personnel of the Armed Forces from 15th
August, 1947 to date have been so
innumerable that they can best be described
by the following quotation of Sir Winston
Churchill who had on 20th August, 1940 said:
"Never in the field of human conflict was
so much owed by so many to so few"
The Committee was conscious of the ground reality
that the personnel of Armed Forces are the only
Government employees who retire at a relatively younger
age to keep a youthful profile due to the arduous nature
of their duties in hazardous and inhospitable terrain. It
stated that, almost all ex-servicemen, whose retirement
age depending on rank, vary from 35 to 54 years, require
help and assistance for resettlement, rehabilitation and
adjustment in the civil stream. They require a second
career as they are comparatively young and active and
their responsibilities and obligations are at the peak
when they are compulsorily retired. Having given the
best years of their lives for the safety, honour and
integrity of the country, it becomes a national obligation
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 29
to get them resettled and rehabilitated. The Committee
noted that the problems of ex-servicemen had, for a long
time, been engaging the attention of both the Houses of
Parliament as well as the Government and a cause of
concern to Prime Minister Smt. Indira Gandhi who had a
special love and affection for the Armed Forces. Keeping
in view the magnitude of the problem, the High Level
Committee had been set up for the first time after
independence to go into various problems of ex-
servicemen. The Committee was also mindful that
defence and national development were, to a great
extent, interdependent. The Committee quoted Pandit
Jawaharlal Nehru, first Prime Minister of India, who,
while inaugurating the National Defence College at Delhi
as early as in 1960, stated;
"Defence itself is not an isolated matter now. It
is intimately connected with the economic
aspect, industrial aspect and many other
aspects in the country\005 India today has
become positively and actively defence
conscious, more than at any time since
independence. Our desire is to continue to live
peacefully and co-operatively with all our
neighbours. Nevertheless, no defence
apparatus can exist in a purely idealistic way.
It has to be very realistic and remain prepared
for any emergency".
(emphasis supplied)
The Committee considered several problems and
prepared a detailed report. Regarding medical facilities, it
observed:
"Medical Facilities
12.9 Prior to the issue of Government of
India, Ministry of Defence letter No.
16307/DGCAFMS/DG\0273(A)/417\027S/D(AG-1)
dated 14th October, 1966, ex-servicemen and
their families were not entitled to receive any
treatment from Service hospitals except to a
very limited extent as follows:-
(a) Free medical treatment for specific
disabilities in respect of ex-servicemen in
receipt of disability pension.
(b) Other Armed Forces pensioners could be
admitted to Service hospitals only if
accommodation was available and admission
was sanctioned by the Officer Commanding
Station/Administrative Authority. Specified
hospital stoppages were to be paid. No out-
patient treatment was available to such
pensioners.
(c) Families of ex-servicemen were not entitled
to any treatment\027out-door or indoor from
Service hospitals.
12.10 The Government letter cited in para
12.9 above was instrumental in making very
liberal concessions towards the treatment of
ex-servicemen and their families from Service
sources. Under the provisions, ex-service
pensioners and their families and the families
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of deceased service personnel drawing pension
of some kind were entitled to free out-patient
treatment including supply of free medicines
from the nearest military hospital. Sanction
was also accorded for these personnel for
providing in-patient treatment in Service
hospitals subject to the following conditions:-
(a) That the disease is not incurable.
(b) That the hospital accommodation could be
made available from within the authorized
number of beds and without detriment to the
needs of serving personnel.
(c) That the treatment will be limited to the
facilities locally available.
(d) No conveyance will be provided for journeys
from the residence to the hospital and back;
and
(e) No special nursing would be admissible.
It is specifically laid down in this Government
letter that the above concessions will not
include treatment for pulmonary tuberculosis,
leprosy, mental diseases, malignant diseases or
any other disease for which treatment is not
ordinarily available from the local military
sources.
12.11 Liberalisation Proposals : due to the
increased awareness and phenomenal increase
in the number of ex-servicemen at the rate of
60,000 per annum, more and more ex-
servicemen are now coming to Service hospitals
for treatment. To meet the requirement of
giving adequate treatment to the ex-servicemen
reporting at the Service hospitals, the following
additional facilities need to be provided:-
(a) Sanction of 1155 beds exclusively for the ex-
servicemen pensioners and entitled
dependents.
(b) To treat ex-servicemen as out-patients and
in-patients, additional staff would also be
required as under:-
(i) Officers 33
(ii) Nursing Officers 74
(iii) Other Ranks 312
(iv) Civilians 211
12.12 Civil Hospitals : Ex-servicemen are
living in villages, towns and cities throughout
the country. The 31 military hospitals are
situated in military stations. The primary aim
of these hospitals is to provide medical cover to
the serving personnel. On account of their
location, only those ex-servicemen and entitled
dependents within close proximity to these
stations are likely to avail of the facilities in
these military stations. In the case of most
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other ex-servicemen they have to perforce
depend upon the civil hospitals in the districts.
Hence, States/Union Territories should provide
medical assistance to the ex-servicemen in
their civil hospitals free of charge, for example
as provided in Karnataka. In Chapter X, certain
recommendations have been made for
provision of funds from the Seventh Plan
expenditure for the construction of wards for
ex-servicemen in hospitals. This should also be
done in civil hospitals particularly in States
where there are a large number of ex-
servicemen."
The Committee then made certain
recommendations, inter alia, observing that the existing
facilities in the Military hospitals should be enhanced for
ex-servicemen and their entitled dependents in a phased
manner in the next few years.
As already noted earlier, in 1983, Regulations for
the medical services of the Armed Forces were framed
superseding the Regulations for the medical services of
the Armed Forces, 1962. Regulation 296 providing
"Entitlement to medial attendance" is relevant and the
material part thereof reads thus:
296. The classes noted below are entitled to medical
attendance as defined in paras 284, 285 and 286 to the extent
shown against each:\027
Classes
Medical attendance
Admissible
Remarks
(a)
(b)
(c)
A.
\005
\005
\005
\005
B.
\005
\005
\005
\005
C.
\005
\005
\005
\005
D.
\005
\005
\005
\005
E.
\005
\005
\005
\005
F.
(i)
Ex-service
personnel in receipt
of a disability
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 29
pension and Ex-
servicemen of the
Indian State Forces
in receipt of a
disability pension
from the Defence
Services Estimates
for a disability
accepted as attribu-
table to or aggra-
vated by service
with the Indian
Armed Forces.
As out-patient or in
a hospital.
(a) Treatment is
authorized only for
the disabilities for
which pension has
been granted
excluding cases of
Pulmonary Tuber-
culosis, Leprosy
and mental
diseases and
patients requiring
any special
treatment not
ordinarily available
from service
sources, such as
radiotherapy.
(b) Admission may
be authorized for
the purpose of
observation to
enable the medical
authorities to
arrive at a correct
assessment of the
degree of
disability.
(ii)
Personnel of F(i)
above, who have
been invalidated out
of service on
account of a dis-
ability accepted as
attributable to/
aggravated by
military service but
who are not in
receipt of a
disability pension
for the reason that
the disability is less
than 20% and
individuals whose
case attributability
has been conceded
by the Medical
Board but a final
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 29
decision in the
matter ha snot been
reached.
As out-patient or in
a hospital, if
accommodation is
available.
(a) As in F(i) above.
(b) Treatment will
be discontinued
immediately in
respect of cases
under conside-
ration if the final
decision is against
the findings of the
Medical Board.
(iii)
Ex-service
personnel invalided
out of service on
account of pulmo-
nary tuberculosis
which has been
accepted as attribu-
table to/aggravated
by service and for
which disability
pension has been
granted.
(i) Domiciliary
treatment as out
patient.
(ii) May be admitted
in Military Hospital
(Cardio Thoracic
Centre), Pune, on
the recommen-
dation of OC of an
armed forces
hospital, if a bed
out of the ten T.B.
beds reserved for
this category of
personnel is
available.
On relapse of the
disease.
This concession is
not an entitlement
for indoor hospital
treatment for T.B.
from military
sources for ex-
servicemen.
G.
\005
\005
\005
\005
H.
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 29
\005
\005
\005
\005
I.
\005
\005
\005
\005
J.
\005
\005
\005
\005
K.
\005
\005
\005
\005
L.
\005
\005
\005
\005
M.
\005
\005
\005
\005
N.
\005
\005
\005
\005
O.
Ex-Service pensioners
and their families of
deceased service
personnel drawing
pension of some kind
(i) Free out patient
treatment in the
nearest Armed
Forces Hospital
including the supply
of medicine
necessary for their
treatment.
(ii) In-patient
treatment in Armed
Forces Hospital
subject to the
following conditions:
a) That the disease is
not incurable.
b) The hospital
accommodation
could be made
available within the
authorized number
of beds and without
detriment to the
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needs of service
personnel.
c) That the treatment
will be limited to the
facilities available
locally.
d) No conveyance will
be provided for
journeys from the
residence to the
hospital and back.
e) No special nursing
would be admissible.
f) for in patient
treatment, hospital
stoppages will be as
para 16 of Appendix
5.
The scope of the
above concessions
will not include
treatment for
pulmonary tuber-
culosis, leprosy,
mental disease,
malignant disease
or any other
disease for which
treatment is not
ordinarily available
from local military
sources.
(ii) These conce-
ssions will not be
admissible to the
service pensioners
who are re-
employed in
Government/Semi-
Government
departments or
other public or
private Sector
undertaking which
provides medical
facilities to their
employees.
iii) for this purpose
family includes
wife and un-
married children /
step children /
adopted children
under 18 years of
age are dependent
on the pensioners.
Note : Retired officers of the Armed Forces including
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M.N.S. officers and retired JCOs, WOs, OR and NcsE or
equivalents in the Navy and Air Force in receipt of
service pension may be treated in a hospital if
accommodation is available and admission is
sanctioned by the O.C. Station/administrative
authority. They are not entitled to special nursing in
hospital.
In the affidavit in reply filed by the Union of India,
it was stated that under the Group Insurance Scheme
and from the Armed Forces Flag Day Fund, medical
treatment has been provided to ex-servicemen. On the
recommendation of Fifth Pay Commission, the
Government had sanctioned a fixed medical allowance of
Rs.100 per month to those ex-servicemen and their
families who reside in the area where Armed Forces
hospitals/clinics are not available. Other facilities were
also extended to them. It was stated that in respect of
serious diseases i.e. diseases affecting heart\027
angiography, open heart surgery, valve replacement,
pacemaker implant, bypass surgery and repeat
angioplasty, cancer, etc. facilities are now available.
Substantial financial assistance is provided to ex-
servicemen and their dependents for treatment in several
hospitals for bypass surgery (including preliminary tests
like angiography, angioplasty, angiography),
kidney/renal transplantation, cancer/spastic paraplegic
treatment, coronary artery surgery, open heart surgery,
valve replacement and pacemaker implant.
We have been taken through the contributory
scheme of 2002. It substantially covers extensive medical
facilities to be provided to ex-servicemen. A
communication dated December 30, 2002 by
Government of India, Ministry of Defence to the Chief of
Army Staff, Navy Staff and Air Staff states that
Government has sanctioned Ex-Servicemen Contributory
Health Scheme (ECHS).
The communication inter alia states as under:
"(a) ECHS would be a contributory scheme. On
retirement, every Service personnel will
compulsorily become a member of ECHS by
contributing his/her share and the Scheme
would be applicable for life time. Similarly ex-
servicemen who have already retired can
become members by making a one time
contribution. There would be no restriction on
age or medical condition. The contribution will
be according to the rates prescribed for CGHS
pensioners as per Appendix-A attached.
(b) Retired personnel joining the scheme will
forfeit the medical allowance of Rs.100/-
presently admissible to them and those who do
not join the scheme would continue getting
medical allowance as hithertofore. Such
persons would not be entitled to any medical
facility from Armed Forces Clinics/Hospitals or
Polyclinics set up under the scheme."
Para 2 (c) of the said letter states that the scheme
would cater for medicare to the ex-servicemen by
establishing new Polyclinics and Augmented Armed
Forces Clinics at 227 stations spread across the country,
the details of which have been given in the letter. It also
provides for reimbursement of cost of medicines/
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drugs/consumables and for financial outlay. It states
that the service head quarters would ensure that
allocations made for revenue expenditure and
reimbursement is fully utilized on yearly basis. It then
prescribes rates of contribution in Appendix-A which are
as under:
RATES OF CONTRIBUTION
(a) Pension upto Rs.3000 Rs. 1800
(b) Pension between Rs.3001-6000 Rs. 4800
(c) Pension between Rs.6001-10000 Rs. 8400
(d) Pension between Rs.10001-15000 Rs. 12000
(e) Pension of Rs.15000 and above Rs. 18000
From the above discussion as well as the relevant
provisions of the scheme, we are satisfied that necessary
steps have been taken by the respondents. Under the
scheme, now in vogue, all ex-servicemen are entitled to
medical treatment provided they become members of the
said scheme and pay requisite contribution. It is also not
in dispute that this would apply only to those defence
personnel who retired prior to 1st January, 1996 since
officials who have retired after that date or are still in
service are governed by the scheme and are paying
requisite amount of contribution.
The larger question raised by various associations
is that to get free and full medical aid is their
fundamental right and is corresponding duty of the
Government. The respondents, hence can neither deny
that right nor can ask ex-servicemen to pay contribution
amount for getting medical services.
To buttress the contention, the learned counsel
invited our attention to several decisions of this court. It
is not necessary to deal with all those cases. We may,
however, consider some of them which are relevant.
Strong reliance was placed on a decision of three
Judge Bench in Consumer Education & Research Centre.
In that case, the Court dealt with the problem of
occupational health hazards and diseases sustained by
the workmen employed in asbestos industries. The Court
observed that the dangers and diseases attributable to
personnel working in asbestos industries were very
serious apart from cancer and respiratory disorders. It
was held that right to health and medical aid of workers
during service and thereafter, is a fundamental right of
workers. According to this Court, it can issue directions
in an appropriate case to the State or its
instrumentalities or even private employers to make the
right to life meaningful and to pay compensation to
affected workmen. It also held that the defence of
’sovereign immunity’ would not be available to the State
or its instrumentalities where fundamental rights are
sought to be enforced. Relying on several previous
judgments, this Court held that right to life would mean
meaningful and real right to life. It would include right to
livelihood, better standard of living in hygienic conditions
at the work place and leisure.
Speaking for the Court, K. Ramaswamy, J.
observed in para 25;
"Therefore, we hold that right to health,
medical aid to protect the health and vigour of
a worker while in service or post retirement is
a fundamental right under Article 21, read
with Articles 39(e), 41, 43, 48A and all related
to Articles and fundamental human rights to
make the life of the workman meaningful and
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purposeful with dignity of person."
(emphasis supplied)
Reliance was also placed on CESC Ltd. v. Subhash
Chandra Bose, [1992) 1 SCC 441 : AIR 1992 SC 573],
wherein His Lordship (K. Ramaswamy, J.) held that right
to health of a worker is covered by Article 21 of the
Constitution. It was also indicated that health does not
mean mere absence of sickness but would mean
complete physical, mental and social well-being.
"Facilities of health and medical care generate devotion
and dedication to give the workers’ best, physically as
well as mentally, in productivity. It enables the worker to
enjoy the fruit of his labour, to keep him physically fit
and mentally alert for leading a successful economic,
social and cultural life. The medical facilities are,
therefore, part of social security and like gift-edged
security, it would yield immediate return in the
increased production or at any rate reduce absenteeism
on the ground of sickness."
Reference was made to Bandhua Mukti Morcha v.
Union of India, [(1984) 3 SCC 161 : AIR 1984 SC 802]
wherein Bhagwati, J. (as His Lordship then was)
referring to Francis Coralie Mullin v. Administrator, Union
Territory of Delhi, [(1981) 1 SCC 608 : AIR 1981 SC 746]
stated;
"It is the fundamental right of every one
in this country, assured under the
interpretation given to Article 21 by this Court
in Francis Mullen’s case, to live with human
dignity, free from exploitation. This right to
live with human dignity enshrined in Article
21 derives its life breath from the Directive
Principles of State Policy and particularly
Clauses (e) and (f) of Article 39 and Articles 41
and 42 and at the least, therefore, it must
include protection of the health and strength
of workers men and women, and of the tender
age of children against abuse, opportunities
and facilities for children to develop in a
healthy manner and in conditions of freedom
and dignity, educational facilities, just and
humane conditions of work and maternity
relief. These are the minimum requirements
which must exist in order to enable a person
to live with human dignity and no State
neither the Central Government nor any State
Government-has the right to take any action
which will deprive a person of the enjoyment
of these basic essentials. Since the Directive
Principles of State Policy contained in Clauses
(e) and (f) of Article 39, Article 41 and 42 are
not enforceable in a court of law, it may not
be possible to compel the State through the
judicial process to make provision by
statutory enactment or executive fiat for
ensuring these basic essentials which go to
make up a life of human dignity but where
legislation is already enacted by the State
providing these basic requirements to the
workmen and thus investing their right to live
with basic human dignity, with concrete
reality and content, the State can certainly be
obligated to ensure observance of such
legislation for inaction on the part of the State
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in securing implementation of such legislation
would amount to denial of the right to live
with human dignity enshrined in Article 21,
more so in the context of Article 256 which
provides that the executive power of every
State shall be so exercised as to ensure
compliance with the laws made by Parliament
and any existing laws which apply in that
State."
The counsel also relied upon Paschim Banga Khet
Mazdoor Samity v. State of West Bengal, [(1996) 4 SCC
37 : AIR 1996 SC 2426]. That case related to failure on
the part of Government hospitals to provide timely
emergency medical treatment to persons in serious
conditions. Relying on Khatri (II) v. State of Bihar, [(1981)
1 SCC 627], this Corut said;
"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 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. It is
necessary that a time-bound plan for
providing these services should be chalked
out keeping in view the recommendations of
the Committee as well as the requirements for
ensuring availability of proper medical
services in this regard as indicated by us and
steps should be taken to implement the same.
The State of West Bengal alone is a party to
these proceedings. Other States, though not
parties, should also take necessary steps in
the light of the recommendations made by the
Committee, the directions contained in the
Memorandum of the Government of West
Bengal dated August 22, 1995 and the further
directions given herein".
In Vincent Panikurlangara v. Union of India, [(1987)
2 SCC 165 : AIR 1987 SC 990],the issue related to
manufacturing, selling and distributing approved
standard of drugs and banning of injurious and harmful
medicines. In the background of that question, this
Court held right to maintenance and improvement of
public health as one of the fundamental rights falling
under Article 21 of the Constitution.
Quoting a well-known adage "Sharirmadhyam
khalu dharma shadhanam" (healthy body is the very
foundation of all human activities), the Court observed
that\027
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"\005maintenance and improvement of public
health have to rank high as these are
indispensable to the very physical existence of
the community and on the betterment of
these depends the building of the society of
which the Constitution makers envisaged.
Attending to public health, in our opinion,
therefore, is of high priority--perhaps the one
at the top".
In National Textile Workers’ Union v. P.R.
Ramakrishnan, [(1983) 1 SCC 228 : AIR 1983 SC 75],
placing emphasis on needs of changing society and
liberal construction of laws conferring benefits on weaker
classes, Bhagwati J. (as His Lordship then was) said;
"We cannot allow the dead hand of the
past to stifle the growth of the living present.
Law cannot stand still; it must change with
the changing social concepts and values. If
the bark that protects the tree fails to grow
and expand alongwith the tree, it will either
choke the tree or if it is a living, tree, it will
shed that bark and grow a new living bark for
itself. Similarly, if the law fails to respond to
the needs of changing society, then either it
will stifle the growth of the society and choke
its progress or if the society is vigorous
enough, it will cast away the law which
stands in the way of its growth. Law must
therefore constantly be on the move adopting
itself to the fast changing society and not lag
behind. It must shake off the inhibiting legacy
of its colonial past and assume a dynamic role
in the process of social transformation. We
cannot therefore mechanically accept as valid
a legal rule which found favour with the
English courts in the last century when the
doctrine of laissez faire prevailed. It may be
that even today in England the courts may be
following the same legal rule which was laid
down almost a hundred years ago, but that
can be no reason why we in India should
continue to do likewise. It is possible that this
legal rule might still be finding a place in the
English text books because no case like the
present one has arisen in England in the last
30 years and the English courts might not
have had any occasion to consider the
acceptability of this legal rule in the present
times. But whatever be the reason why this
legal rule continues to remain in the English
text books, we cannot be persuaded to adopt
it in our country, merely on the ground that it
has been accepted as a valid rule in England.
We have to build our own jurisprudence and
though we may receive light from whatever
source it comes, we cannot surrender our
judgment and accept as valid in our country
whatever has been decided in England".
It cannot be gainsaid that right to life guaranteed
under Article 21 of the Constitution embraces within its
sweep not only physical existence but the quality of life.
If any statutory provision runs counter to such a right, it
must be held unconstitutional and ultra vires Part III of
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the Constitution. Before more than hundred years, in
Munn v. Illinois, (1876) 94 US 113 : 24 Law Ed 77, Field,
J. explained the scope of the words "life" and "liberty" in
5th and 14th Amendments to the U.S. Constitution and
proclaimed;
"By the term "life" as here used something
more is meant than mere animal existence. The
inhibition against its deprivation extends to all
these limits and faculties by which life is
enjoyed. The provision equally prohibits the
mutilation of the body or amputation of an
arm or leg or the putting out of an eye or the
destruction of any other organ of the body
through which the soul communicates with
the outer world....... by the term liberty, as
used in the provision something more is
meant than mere freedom from physical
restraint or the bonds of a prison."
(emphasis supplied)
The above observations have been quoted with
approval by this Court in Kharak Singh v. State of U.P.
(1964) 1 SCR 332 : AIR 1963 SC 1295. A similar view
thereafter has also been taken in several cases, viz.,
Prithi Pal Singh v. Union of India, (1982) 3 SCC 140 : AIR
1982 SC 1413; A.K. Roy v. Union of India, (1982) 1 SCC
271 : AIR 1982 SC 710; Olga Tellis v. Bombay Municipal
Corporation, (1985) 3 SCC 545 : AIR 1986 SC 180; State
of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68 : AIR
1986 SC 847; Prabhakaran v. State of Tamil Nadu, (1987)
4 SCC 238 : AIR 1987 SC 2117; A.R. Antulay v. R.S.
Nayak, (1988) 2 SCC 602 : AIR 1988 SC 1531; Vikram
Deo Singh v. State of Bihar, 1988 Supp SCC 734 : AIR
1988 SC 1782; Parmanand Katara v. Union of India,
(1989) 4 SCC 286 : AIR 1989 SC 2039; Kishan Pattnayak
v. State of Orissa, 1989 Supp (1) SCC 258 : AIR 1989 SC
677; Shantistar Builders v. Narayan, (1990) 1 SCC 520 :
AIR 1990 SC 630; Chhetriya Pradushan Mukti Sangharsh
Samiti v. State of U.P., (1990) 4 SCC449 : AIR 1990 SC
2060; Charan Lal Sahu v. Union of India, (1990) 1 SCC
613 : AIR 1990 SC 1480; Delhi Transport Corporation v.
Delhi Transport Corporation Mazdoor Congress, 1991
Supp (1) SCC 600(735) : AIR 1991 SC 101; Kapila
Hingorani v. State of Bihar, (2003) 6 SCC 1; District
Registrar & Collector, Hyderabad v. Canara Bank, (2005)
1 SCC 496].
The stand of the Union of India, however, is that to
provide medical facilities to all defence personnel in
service as well as retired, necessary steps have been
taken. So far as ex-servicemen are concerned,
Contributory Scheme of 2002 provides for medical
services by charging ’one time contribution’ on the basis
of amount of pension received by an employee. The
amount ranges from Rs.1,800 to Rs.18,000 which
cannot be said to be excessive, disproportionate or
unreasonably high. The question, therefore, is whether
the State can ask the retired defence personnel to pay an
amount of contribution for getting medical facilities by
becoming a member of such scheme.
In our opinion, such a contributory scheme cannot
be held illegal, unlawful or unconstitutional. Ultimately,
the State has to cater to the needs of its employees\027past
and present. It has also to undertake several other
activities as a ’welfare’ State. In the light of financial
constraints and limited means available, if a policy
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decision is taken to extend medical facilities to ex-
defence personnel by allowing them to become members
of contributory scheme and by requiring them to make
’one time payment’ which is a ’reasonable amount’, it
cannot be said that such action would violate
fundamental rights guaranteed by Part III of the
Constitution.
In State of Punjab v. Ram Lubhaya Bagga, [(1998) 4
SCC 117 : AIR 1998 SC 1703], a three Judge Bench of
this Court had an occasion to consider the question of
change of policy in regard to reimbursement of medical
expenses to its employees. Referring to earlier decisions,
the Bench took note of ground reality that no State has
unlimited resources to spend on any of its projects.
Provisions relating to supply of medical facilities to its
citizens is not an exception to the said rule. Therefore,
such facilities must necessarily be made limited to the
extent finances permit. No right can be absolute in a
welfare State. An individual right has to be subservient
to the right of public at large.
"This principle equally applies when there is
any constraint on the health budget on
account of financial stringencies."
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 it is
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.1,800/- to Rs.18,000/-). To us, this cannot be held
illegal, unlawful, arbitrary or otherwise unreasonable.
Observations made by this Court in the cases relied
upon by the petitioner and intervenors including
Consumer Education & Research Centre referred to
earlier, must be read as limited to the facts before the
court and should not be understood to have laid down a
proposition of law having universal or general
application irrespective of factual situation before the
Court. To us, the policy decision in formulating
Contributory Scheme for ex-servicemen is in accordance
with the provisions of the Constitution and also in
consonance with the law laid down by this Court. We see
no infirmity therein. We, therefore, hold that getting free
and full medical facilities is not a part of fundamental
right of ex-servicemen.
We must, however, hasten to add that we are not
unmindful or oblivious of exemplary and extremely
useful services rendered by defence personnel. We are
equally conscious of the fact that the safety, security and
comfort enjoyed by the countrymen depend largely on
dedication and commitment of our soldiers, sailors and
airmen. We are also aware that they are exposed to
harsh terrain and discharge their duties in hostile
conditions of life. For days and months, they are at
places covered by snow or in desert or in wild forests.
They are unable to come in contract with their family
members, kiths and kins or rest of the world. They are
not in a position to enjoy even usual and day-to-day
comforts and amenities of life available to ordinary men
and women. At times, they are not able to communicate
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to their friends and relatives. It is also not in dispute
that the question relates to a particular class of persons
which is a ’diminished category’, retired prior to January
1, 1996.
Taking into account all these facts and the
circumstances in their entirety, on March 8, 2006, we
passed the following order:
"Mr. K. S. Bhati, learned counsel appearing
for Petitioner No. 1, commenced his
submissions at 10.30 a.m. and
concluded at 2.35 p.m. Thereafter, Mr.
J.S. Manhas, learned counsel appearing
for Petitioner Nos. 2 and 3, made his
submissions till 3.00 p.m. Mr. Ravi P.
Mehrotra, learned counsel appearing for the
Union of India, made his submissions till 3.25
p.m. Mr. K.S. Bhati, learned counsel,
thereafter rejoins and concluded at 3.30 p.m.
Hearing concluded.
We have heard the learned
counsel for the parties on the questions
of law, particularly on the aspect of
the correctness of broad observations
made in the decision of a three-Judge
Bench in Consumer Education Research
Centre & Ors. vs. Union of India &
Ors. (1995 (3) S.C.C.43).
During the course of hearing with
the assistance of the learned counsel, we
have perused the Ex-servicemen
Contributory Health Scheme [for short,
"E.C.H.S."] dated 30th December, 2002. The
contribution to be made by an ex-serviceman
so as to avail the benefit of health scheme
under the E.C.H.S. is one-time payment
ranging from Rs.1800/- to Rs.18,000/-
depending upon the amount of pension drawn
by him. In this writ petition, we are
concerned with the cases of those ex-
servicemen who have retired before 1st
January, 1996. It is evident that this class
of ex-servicemen is a diminishing category.
The Government of India, Ministry of Defence,
shall consider, without it being treated
as a precedent, the question of granting
the waiver of contribution required to be
made under the E.C.H.S. by the ex-
servicemen of the category with which we are
concerned, i.e., those who have retired
prior to 1st January, 1996, having
regard to the contribution that may
have been made by them in the
service of the nation and particularly
considering that they, while in service,
were not making any payment so as
to enjoy the benefit of medical care.
Alternatively, the Government can also
consider making payment on behalf of those
who may be interested in availing the
benefits under the E.C.H.S. In case of
any difficulty in granting this one-time
concession, the Government shall file an
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affidavit within a period of four weeks, placing
on record the approximate amount which may
have to be waived or contributed by the
Government on behalf of such category
of ex-servicemen. Further, if the
Government decides to waive it or pay it,
without it being treated as a precedent, in
that event, the amount may not be
incorporated in the affidavit. The waiver or
payment would be only in respect of those
who voluntarily wish to join the E.C.H.S.
Judgment is reserved".
In the above order, we suggested that the
Government may waive payment of contribution charges
or may consider to pay requisite ’one time contribution’
on behalf of the employees who may be interested in
availing the benefits of ECHS. We also indicated that in
case of any difficulty in granting this one time
concession, the Government may file an affidavit within
a period of four weeks placing on record the approximate
amount which may have to be waived or contributed by
the Government on behalf of such category of ex-
servicemen. No such affidavit has been filed by the
Government so far. It can, therefore, safely be presumed
that the Government has no difficulty in waiving/paying
contribution as a ’one time measure’ on behalf of ex-
defence personnel who retired prior to January 1, 1996
and wish to avail benefits of ECHS. Obviously, the said
question will not arise in future. We, therefore, dispose of
the matter in the light of our earlier order and the
observations made therein.
For the reasons aforesaid, the writ petition deserves
to be partly allowed. Keeping in view 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 those ex-
servicemen who retired prior to January 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 January 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. Rule is made absolute
to the extent indicated above. In the facts and
circumstances, however, parties are directed to bear
their own costs.