Delhi High Court
Dal Chand Vashisht vs Government Of Nct Of Delhi And Ors. ... on 14 March, 2008
Author: Vipin Sanghi
Bench: A.K. Sikri, Vipin Sanghi
JUDGMENT Vipin Sanghi, J.
1. The Petitioner retired from Sarvodaya Vidyalaya, INA, New Delhi as PGT (English) teacher on 31.5.1991 and settled down at Faridabad. He suffered heart related medical ailments and was admitted to Metro Hospital at Faridabd in emergency on 5.5.2004. His treatment bill came to Rs. 1,30,000/-. He was discharged on 9.2.2004. He submitted a representation dated 15.7.2004 to the concerned Ministry seeking reimbursement of the medical expenses as aforesaid. Since he did not hear from the respondent, he preferred O.A. No. 2510/2005 before the Central Administrative Tribunal, Principal Bench, New Delhi (Tribunal for short) which was disposed of with a direction that the representation of the Petitioner be decided.
2. Pursuant thereto the respondent passed an order on 17.3.2006 rejecting the petitioners claim for medical reimbursement on the ground that he had applied for membership of Delhi Government Employees Health Scheme (DGEHS) by paying the requisite fee only on 11.3.2004, and that he became its member only on 23.3.2004, i.e. after having undergone treatment at Metro Hospital, Faridabd. It was further stated that the aforesaid scheme was optional for teachers and they could become members of the scheme only after their retirement. During their services, they were governed by another scheme of the Government of India contained in Ministry of Education Office Memorandum dated 2.8.1985. It was further stated that the claim of the Petitioner was not covered under the Central Services (Medical Attendance) Rules 1944 [CS(MA) Rules for short] since retired Government officials are not governed by the said Rules. This order was challenged by the petitioner by filing O.A. No. 939/2006.
3. The Tribunal by its impugned order dated 13.11.2006 has rejected the claim of the petitioner, and that is how the petitioner is before us.
4. The Tribunal took note of the decision of the Supreme Court in Ramdev Singh etc. etc. v. Union of India 2003 (2) ATJ 19, wherein the Supreme Court had directed that till such time as the Central Government permits a scheme for reimbursement of medical expenses incurred by retired Government employee for indoor treatment, the Government servant may enroll under the CGHS initially. However, the Supreme Court also made it clear that if the retired Government servant resides in an area not covered under the said scheme, he would not be entitled to claim reimbursement immediately.
5. The petitioner, in support of his claim, has placed reliance upon a few judgments and office memorandum dated 6.10.2003 and the CS(MA) Rules. We shall deal with them in the course of this judgment. However, at the outset we may point out that the reliance placed by the Petitioner on the CS(MA) Rules is clearly misplaced since the said Rules expressly do not apply to a retired Government servant. Rule 1 of the said Rules reads as follows:
1.(1) These rules may be called the Central Services (Medical Attendance) Rules, 1944.
(2) They shall apply to all Government servants other than (i) those in Railway service, and (ii) those of non-gazetted rank stationed in or passing through Calcutta, whose conditions of service are prescribed by rules made or deemed to be made by the Central Government, when they are on duty, leave or Foreign Service in India or when under suspension.
NOTE 1. - Persons in Railway service are excluded from the purview of these Rules. Railway employees on deputation to various other offices under the Central Government are, however, governed by these rules.
NOTE 1. - These rules do not apply to -
(i) defense Services personnel.
(ii) Government servants who are on leave or deputation abroad;
(iii) Non-Gazetted Government servants, including Group 'D' and Gazetted Government servants (other than Central Services, Group 'A') drawing pay less than Rs. 2,500 (Fourth Pay Commission Pay scale) stationed in or passing through Calcutta for whom special arrangements for medical attendance and/or treatment have been made, vide Section 6 of this Compilation;
(iv) Retired Government officials;
(v) Non-officials sent on deputation abroad;
(vi) Government servants who are governed by the Central Government Health Scheme while in service where this Scheme is functioning;
(vii) Officers of the All India Services and other persons who are governed by the All India Services (Medical Attendance) Rules, 1954;
6. The DGEHS scheme was implemented by the Government of NCT of Delhi vide memorandum dated 13th March 1997. Though the same has not been filed on record, we have called for the same. The relevant extract of the said scheme reads as follows:
With a view to streamline the system for providing medical facilities to the employees/pensioners of Delhi Government, a new scheme in line with the Central Government Health Scheme on the basis of monthly contribution on the same scale is applicable in CGHS is being introduced w.e.f. 1st April 1997. The rates of the Delhi Government Employees/Pensioners respectively from April 1997 are as under:
xxx xxx On the basis of contribution, the employees/pensioners would be issued a medical card which would entitle them to free treatment in a dispensary/hospital of the Government of Delhi. In case of employees who have already retired, it would be stipulated that they can henceforth avail of the benefit if they either agree to have the rates of subscription deducted from their monthly pension or make a lump sum payment which would be equivalent to their subscription for five years i.e. 60 months. For the employees retiring henceforth also, this system would be made applicable. The following supplementary benefits would be extended to them particularly by pensioners:
i) Free admission in all the hospital/nursing homes under Government of Delhi according to entitlement and as per norms applicable to a serving Government servant of that income bricket. In case, any medicine is not available in hospital/dispensary, the hospital authorities would purchase the same and supply it to eligible beneficiary and in case it is not possible, the beneficiary would be allowed reimbursement of such medicine(s).
ii) If the Medical Officer in charge of the hospital/dispensary feels that special treatment is required, he will refer the patient to the authorised medical institution providing such specialised treatment on priority basis.
Iii) In case of emergency treatment, the pensioner and his/her spouse/dependent family member would be entitled to the same benefits as are admissible to the serving employees under CS (MA) Rules, 1944.
iv) Similarly, in the case of specialised medical care services like coronary by-pass surgery, angiography, angioplasty, cancel treatment etc., the benefits as admissible to the working employees of the Delhi Government shall also be made applicable to all its pensioners and their dependent family members. The treatment to the pensioner should be provided on preferential basis on production of an identity card.
In brief the beneficiaries would be provided out-patient care, emergency services, free supply of necessary drugs, laboratory and radiological investigations, specialists, consultation at hospital, family welfare services and treatment in specialised hospitals. In case of pensioners who have settled down outside Delhi, it would be optional for them to join or not to join the scheme. However, they would be able to avail of the benefit only if treatment in Delhi as per instructions on this subject.
7. The Government of NCT of Delhi issued an Office Memorandum dated 6.10.2003 which again stated that the aforesaid DGEHS scheme is optional for employees/pensioners and reimbursement facility is available only to the members of the scheme with prospective effect. Since it was felt that the number of hospitals recognised under the scheme were not adequate and the scheme needed augmentation, number of hospitals under the scheme was increased and some of the provisions of the scheme were also changed to provide more benefits for the members of the scheme. This memorandum conveyed that it has been decided that the office memorandum issued by the Government of India, Ministry of Health and Welfare dated 7.9.2001 shall form the basis of the medical facilities for serving Government employees and pensioners of Government of NCT of Delhi, with such modifications as are decided by Government of NCT of Delhi from time to time. This Office Memorandum also stated that "medical treatment any where outside Delhi will be considered for reimbursement in case of emergency only as per provisions of CS (MA) Rules." With regard to the membership of the scheme, it was stated that the "membership will be compulsory for all employees in due course, however for the time being all the scheme will be continued optional for both serving employees as well as pensioners till further orders." The rates of monthly contribution were prescribed and it stated "A lump sum payment of 120 months (10 years) membership contribution by the pensioners (as per eligible category) will enable them to avail such medical facilities for life long with prospective effect." The Office Memorandum dated 07.09.2001 referred to above related recognition of private hospitals/diagnostic centers under CGHS and the fixation of package rates for specialised and general purpose treatment and diagnostic procedures.
8. From the aforesaid it is evident that the DGEHS is a voluntary and contributory scheme. It is optional for employees as well as pensioners whether or not to opt for the said scheme. Employees and Pensioners opting for the scheme are required to subscribe to the scheme at the rates specified there under. The benefits of the scheme are available to employees and beneficiaries who may be residing at any location and treatment undertaken even outside Delhi would be considered for reimbursement, in case of emergency, as per provisions of CS (MA) Rules.
9. Upon the retirement of the Petitioner he was no longer entitled to avail of the said CS(MA) Rules. He had the option to become a member of the DGEHS by paying the requisite fee. The Petitioner even opted to become a member of the said scheme. However, it was subsequent to his having undergone treatment. Therefore, the issue that arises for consideration is, whether a claim for medical reimbursement under a scheme in respect of treatment undertaken prior to the exercise of option to become member of the said scheme could be entertained under the said scheme. This leads us to the question, whether the membership of the DGEHS relates back to the date of retirement, irrespective of the date on which the retired government servant may become a member thereof.
10. The Petitioner also relies on the decision of the Supreme Court in Hindustan Banglore v. CIT, Karnataka at Banglore . We are again unable to appreciate the relevance of the said judgment wherein the Supreme Court, inter-alia, held that the Circulars and instructions issued by the Board (Central Board of Directorate Tax) are no doubt binding in law, but once the Supreme Court and High Court had declared the law on the question arising for consideration, it will not be open to a court to direct that the circular should be given effect to and not the view expressed in the decision of the Supreme Court or the High Court.
11. Reliance has also been placed on the decision of the Supreme Court in Paschim Banga Khet Mazdoor Samity and Ors. v. State of West Bengal and Anr. . In this decision the Supreme Court held that the Government is duty bound to provide medical assistance to person who are in serious condition and that medical facilities cannot be denied by Government hospital to such persons on the ground of non availability of beds. We are unable to appreciate how this judgment is applicable in the facts of the present case. It is not the Petitioner case that he was not given treatment in a Government hospital when he was seriously ill.
12. The decisions in Government of NCT of Delhi and Ors. v. Som Dutt Sharma (2005) 118 DLT 144 and V.K. Jagdhari v. UOI and Ors. 2006 (1) ATJ 282 decided by this Court and relied upon by the petitioner have been distinguished by the Tribunal. In Som Dutta Sharma (supra) a division bench of this Court was guided by the fact that the scheme floated by the concerned department by default applied to the retired employees. Consequently, such of the employees who had specifically opted not to be covered by the scheme alone were left out of the scheme. The scheme had come into force on 1.4.1997 while the concerned employee had retired on 31.8.1997 and he had undergone surgery on 25.3.2000. The argument that contribution was not paid by him till after the treatment was taken was rejected on the basis of the language employed in the Scheme itself, which provided that the deductions were to be made by the department. Consequently, it was not any act/omission on the part of the concerned employee, which was responsible for the non-payment of the subscription to the scheme, which by default covered him.
13. In V.K. Jagdhari (Supra), the Petitioner had retired on superannuation on 31.10.1995. Prior to that on 1.4.1984 the Government had introduced the Central Government Health Services which covered its employees and former employees who had opted to be covered by the scheme. Admittedly, CGHS facility was not available in Neemuch, Madhya Pradesh, where the Petitioner Shri V.K. Jagdhari had settled after his retirement. For that reason he had not become a member of the CGHS. In these circumstances, even though the treatment had been undergone by the Petitioner Shri V.K. Jagdhari in the year 1998, he was granted reimbursement under the CGH Scheme on the basis of his subsequent subscription to the scheme on 26.4.1999. From the judgment, it appears that one of the reasons of granting relief in that case was that the court was of the opinion that his not having become a member of the CGH Scheme at the time when he underwent treatment, could not have been held against Shri V.K. Jagdhari, since, CGHS facility was not available at Neemuch, Madhya Pradesh. From the aforesaid, it appears that the decision in V.K. Jagdhari (supra) does not squarely apply in the facts of this case.
14. That apart, we find ourselves in respectful disagreement with the conclusion drawn by the learned Single Judge in the case of V.K. Jagdhari (supra) that in all cases, irrespective of the terms of the concerned scheme, the retired employees who become members of health schemes at any point of time would be treated as covered by the scheme retrospectively from the date of their superannuation. We are also unable to agree with the reasoning of the learned Single Judge that irrespective of the terms of a given scheme, which is optional and the option has to be positively exercised by the retired employee by paying the subscription, the mere status as a retired employee entitles such retired employee to get covered by the scheme from the date of his retirement irrespective of the fact that he has not opted to become a member of the said scheme and the fact that he has not paid his subscription that he is required to pay in terms of the scheme. We find from the judgment in V.K. Jagdhari (supra) that the learned Single Judge has considered various decisions of this Court and the Supreme Court and since we are expressing our disagreement with the said decision we deem it necessary to examine each one of the decisions relevant to the aforesaid issue, cited and dealt with by the learned Single Judge in V.K. Jagdhari (supra). The following passage from V.K. Jagdhari (supra) would give us the consideration of the various decisions by the learned Single Judge:
The question of entitlement of Government Employee to medical reimbursement for medical treatment undergone has been the subject matter of several rulings of this Court. In one of the judgments reported as S.K. Sharma v. Union of India , the Court after considering the rulings of the Supreme Court and other judgments of this Court held that a pensioner cannot be discriminated against merely because he has not opted for a CGHS Scheme and resides outside a non-CGHS area. The petitioner in that case, a non-card holder pensioner, residing in a non-CGHS area, after undergoing emergency medical treatment, had claimed in August 1998 and stated that ex-post facto approval ought to have been granted. The petitioner had also sought for issuance of the card subsequent to undergoing the treatment. The Court rejected a similar plea of the Central Government that the benefit was inadmissible (due to the patient living in a non-CGHS area, and not having the card) and directed the reimbursement to be given. In a Page 1834 judgment reported similarly in Mohinder Pal Sigh v. Union of India Court held that even if membership under the scheme has not been processed and granted but the patient had undergone medical treatment, he would nevertheless entitled to the benefits under the scheme.
13. The position emerging from various decisions of this Court may be summarised as follows:
1) Even if employee contributes after availing medical facilities, and becoming member after treatment, there is entitlement to reimbursement (DB) Govt. of NCT v. S.S. Sharma
2) Even if membership under scheme not processed the retiree entitled to benefits of Scheme - Mohinder Pal v. UOI .
3) Full amounts incurred have to be paid by the employer; reimbursement of entire amount has to be made. It is for the Government and the hospital concerned to settle what is correct amount. Milap Sigh v. UOI ; Ran deep Kumar Rana v. UOI
4. The pensioner is entitled to full reimbursement so long the hospital remains in approved list P.N. Chopra v. UOI 2004(111) DLT 190
5) Status of retired employee not as card holder: S.K. Sharma v. UOI ;
6) If medical treatment is availed, whether the employee is a cardholders or not is irrelevant and full reimbursement to be given, B.R. Mehta v. UOI 1999(79) DLT 388.' The status of a retired Government Employee was held to be independent of the scheme and rules in so far as the entitlement to medical treatment and/or CGHS benefits were concerned (ref. V.K. Gupta v. Union of India ). Similarly in Narender Pal Sigh v. Union of India (1999) DLT 337, this Court had held that a Government was obliged to grant ex-post facto sanction in case an employee requires a specialty treatment and there is a nature of emergency involved.
The judgments relied upon by the respondents, namely, Ram Lubhaya Bugga's case as well as Mohan Lal Jindal's case were considered by this Court in P.N. Chopra's judgment (supra). Nevertheless, the primary liability Page 1835 of the respondents to ensure full Medical reimbursement in accordance with the claim for medical treatment, was upheld.
In the present case, admittedly, the claim of the petitioner for having undergone the by-pass surgery procedure was verified by the Central Board of Direct Taxes, which forwarded his application for reimbursement. Hence, there is no controversy about the petitioner's medical emergency and the treatment undergone by him. The only resistance however is with regard to his having acquired the CGHS card subsequently. This aspect has been specifically dealt with in the judgments reported in S.K. Sharma's case and also in Government of NCT v. S.D. Sharma . I see reason to take different view. I am not relying upon the decision in T.S. Oberon's case in view of the distinction sought to be made by the respondents. Nevertheless, the judgments in the case of other Government employees are also premised upon their status as retire public servants/Central Government Pensioners entitled to participate in the scheme.
15. The judgment of the Division Bench of this Court in Union of India v. T.S. Oberoi (LPA 898/2002 decided on 7.11.2003) dealt with the case of a retired Judge of this High Court. The contention of Union of India was that the learned Judge Mr. Justice Chawla had not become a member by paying a lump sum fee as per the CGH Scheme immediately on his retirement, and subsequently he could not avail of the benefit of the CGH scheme for the treatment undergone prior to the date of his becoming a member under the scheme. The Division Bench of this Court rejected this submission of the Union of India by observing that a retired Judge of any of the Superior Court has a different status from a retired Civil Servant. Since, during his tenure as a Judge of the High Court he holds a position under the Constitution by virtue of his status as a Judge of a High Court, he is entitled to medical facilities, including those provided by the CGHS. A Judge of the High Court is not required to make any contribution for availing facilities under the CGHS, unlike the Civil Servant. One of the conditions of service of Judges of the Superior Court is that the State is under an obligation to provide him medical facilities mentioned in Rule 2 of the High Court Rules, 1956.
16. The Division Bench relied upon the following observations of the Supreme Court in All India Judges Association and Anr. v. Union of India and Anr. :
The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs of the state and each one of them in turn represents the authority of the State. However, those who exercise the State power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the Legislators are different from the legislative staff. So also the Judges from the judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive.... The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on a par with the members of the judiciary, either constitutionally or functionally.
...
So much for the contention of the review petitioners that the directions given by this Court would lead to the demand from the members of the other services for similar service conditions. It is high time that all concerned appreciated that for the reasons pointed out above there cannot be any link between the service conditions of the Judges and those of the members of the other services. It is true that under Article 309 of the Constitution, the recruitment and conditions of service of the members of the subordinate judiciary are to be regulated by the Acts of the appropriate legislature and pending such legislation, the President and the Governor or their nominees, as the case may be, are empowered to make rules regulating their recruitment and the conditions of service. It is also true that after the Council of States makes the necessary declaration under Article 312, it is the Parliament which is empowered to create an All India Judicial Service which will include posts not inferior to the post of District Judge as defined under Article 236. However, this does not mean that while determining the service conditions of the members of the judiciary, a distinction should not be made between them and the members of the other services or that the service conditions of the members of all the services should be the same. As it is, even among the other services, a distinction is drawn in the matter of their service conditions. This Court has in the judgment under review, pointed out that the linkage between the service conditions of the judiciary and that of the administrative executive was an historical accident. The erstwhile rulers constituted, only one service, viz., the Indian Civil Service for recruiting candidates for the judicial as well as the administrative service and it is from among the successful candidates in the examination held for such recruitment, that some were sent to the administrative side while others to the judicial side. Initially, there was also no clear demarcation between the judicial and executive services and the same officers used to perform judicial and executive functions. Since the then Government had failed to make the distinction between the two services right from the stage of the recruitment, its logical consequences in terms of the service conditions could not be avoided. With the inauguration of the Constitution and the separation of the State power distributed among the three branches, the continuation of the linkage has become anachronistic and is inconsistent with the constitutional provisions. As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on a par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter.
17. The court also relied on Section 23(d) of the Judges (Salaries and Conditions of Service) Act, 1954. The Division Bench in this judgment observed as under:
Judges of the Supreme Court as well as of the High Court discharge sovereign judicial functions. The position of a Judge of these Courts for grant of medical facilities remains the same even after retirement. However, High Court Judges Rules as pointed out above makes it manifestly clear that for a sitting Judge of the High Court of Delhi as well as of Punjab and Haryana, the medical facilities would be the same as applicable to a Union Deputy Minister. Therefore, providing medical facilities less than the one envisaged under the Rules would be against the legislative intent as well as the status of the Judges of the High Court even after they demit office. Anything which is inconsistent with the spirit of the Constitution or interferes with the independence of judiciary has to be struck down. Independence of judiciary is to be maintained not only when the Judge is in office. If a Judge of superior Court has to look for favors in regard to medical facilities after demitting office, that would tantamount to interference with the independence of judiciary. Such interference has to be eschewed at all costs.
Even otherwise in the case in hand, Justice Chawla enjoyed a special position being a Judge of superior court. Therefore even in the absence of CGHS Membership, he would have been entitled to reimbursement of his medical expenses even after retirement. The fact of the matter is that he became life member of CGHS on 8th March, 2002 by paying a lump sum fee, which was accepted by CGHS knowing fully well that Justice Chawla is already admitted in the hospital since 13th December, 2001. Therefore, once the Life Membership Fee was accepted it had to relate back from the date when he was hospitalised i.e. 13th December, 2001. The benefit of the same could not be restricted from 8th March, 2002. The purport and purpose of CGHS Scheme is to grant medical benefit and not to deprive the medical benefit on technical grounds particularly when Justice Chawla enjoyed a special position being a retired Judge of a High Court.
18. Consequently, the observation of the Division Bench of this Court in T.S. Oberoi (supra) that once life membership fee was accepted, it related back to the date of hospitalisation i.e. 13th December 2001 and the benefit could not be restricted beyond 8th March 2002 (when the life membership was granted) has to be understood, firstly, in the context that Justice Chawla, in any event, even without any payment of the subscription, and by virtue of his status and service conditions was covered by the CGH Scheme and, secondly, that when the membership fee for becoming a life member was accepted from him on 8th March 2002 it was accepted after knowing fully well that Justice Chawla was admitted in hospital since 13th December 2001. In our view, therefore, the observation of the Division Bench that life membership fee once accepted would relate back to the date of retirement or earlier hospitalisation and would cover prior illness and hospitalisation have to be understood in the context in which they were made, and cannot be universally applied in all cases in respect of other schemes pertaining to serving or retired government employees.
19. We are, therefore, of the view that all those decisions which have relied on the aforesaid decision in T.S. Oberoi and extended the benefit of the same to retired government employees without appreciating the ratio of the said case cannot be treated as laying down the correct law.
20. Often Health schemes, including the DGEHS are contributory in nature, and are structured on the same lines as the insurance schemes, where the burden is shared by all the contributories collectively for the benefit of those who may need to draw from the common pool thus created. If such contributions were permitted to remain contingent on the employee/pensioner first suffering illness, and incurring substantial expenses (which are more than the contribution he would be liable to make under the Scheme, because only then the employee/pensioner will find it worthwhile to become a member of the Scheme), the entire scheme may collapse. No employee/pensioner would feel the need to get covered by such a scheme in advance, to cover the risks which the scheme protects against. Only such persons who see it as a profitable proposition, i.e., those who have incurred more expenses and are in a position to claim more reimbursement than the contribution required under the scheme would then become members under the scheme at their own convenience. The concept of a large body of employees/pensioners contributing a very small fraction of the costs to meet the expenses of a few who actually suffer large amounts of expenses on medical treatment would be completely defeated. No doubt, even in contributory schemes for employees/pensioners, the Government may provide funds from its coffers as well to top up the expenses/out go from such schemes, but essentially they are contributory schemes.
21. A constitutional Bench of the Supreme Court in "Confederation of Ex-Servicemen Association and Ors. v. Union of India and Ors. (2006) 8 SCC 399 has pronounced upon the nature of the CGH Scheme and the extent scope of the rights of a retired employee vis-a-vis his health services. In the said case the court was considering the claim being made by the confederation of Ex-defense Personnel who were claiming the right to full and free medical aid for themselves and their families as a fundamental right. The Health care Scheme introduced by the Government, wherein the retired Army Personnel were required to subscribe to the said scheme by paying a contribution was challenged on the ground that no amount could be asked from the beneficiaries towards subscription. The stand of the Petitioners before the Apex Court was that while they were in service free and full medical aid was being provided to them and they were similarly entitled to the same post retirement benefits and the imposition of a condition prescribing contribution by the employee to avail the facility post retirement, had violated the fundamental rights to free and full health care. This, according to them, was discriminatory. An analogy was also sought to be drawn from the scheme available for members of Civil Services and it was contended that members of the Civil services were also being provided all the medical facilities irrespective of the status of they being 'in service' or 'retired'. It was contended that the retired civil servant and the retired defense personnel stand on the same footing and no discrimination or differential treatment could be meted out to them. The Supreme Court while rejecting the contentions of the Petitioners held:
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 - past 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 decision is taken to extend medical facilities to ex-defense 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 the fundamental rights guaranteed by Part III of the Constitution.
In State of Punjab v. Ram Lubhaya Bagga 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 the 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. (SCC p.132, para 35) 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.
Observations made by this Court in the cases relied upon by the petitioner and interveners including Consumer Education & Research Centre v. Union of India 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 the 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 the fundamental right of ex-servicemen.
22. With regard to the classification between in-service and ex-service employee, the court observed that such classification was legal, valid and reasonable and extension of the same benefit to retired employees as they were enjoying while in service cannot be claimed as a right. The court was also guided by the fact that the CGHS for retired civil servant was also a contributory scheme and thus retired civil servants, who are members of the scheme are covered by the scheme and they are also provided medical service on payment of a specified amount under the scheme. Since the court has clarified that there is no right to full and free medical facility, though there is a right to medical aid, all persons, upon their retirement must make the requisite contribution and exercise their option to become a member of such schemes before they can seek to obtain the benefit under the said scheme where it is contributory. The court has taken judicial note of the limited financial resources, which the State is possessed of, in coming to its aforesaid conclusion. We also, cannot lost sight of this factor. Having taken note of the aforesaid recent pronouncement of the Supreme Court, we revert to examine the various decisions considered by the learned single Judge of this Court in V.K. Jagdhari (supra).
23. In Deen Dayal Sharma v. Municipal Corporation of Delhi 135 (2006) DLT 32, a learned Single Judge of this High Court based on the decisions in S.D. Sharma (supra) and T.S. Oberoi (supra) held that the said decision had extended the benefit to those who had become members even after the treatment was obtained. Since, as per the our understanding the said decisions do not lay down any such universal proposition, and the ratio of the said decision cannot be extended to all cases, the decision in Deen Dayal Sharma (supra) is overruled on the said proposition of law.
24. In B.R. Mehta v. Union of India , the Court proceeded on the basis that government had already granted sanction to the Petitioner for treatment and therefore the stand of the government that he was not a member of the CGHS was rejected.
25. The decision in S.K. Sharma v. Union of India and Anr. , was rendered in a situation where the Petitioner who earlier was a member of the CGHS decided not to continue as a member of the scheme when he shifted to Bareily, since benefit of the CGHS was not extended to Bareily. The court was therefore guided by the consideration that the retired officer should not suffer on account of the failure on the part of the Government to extend CGHS to all areas of the Country. This decision proceeds on the foundation that the retired government servant has a fundamental right to unconditional medical aid, irrespective of the fact whether the retired servant is a member of a health scheme or not, and whether or not he has paid the subscription therefore. This is contrary to the decision of the Supreme Court in Confederation of Ex-Servicemen Association (supra). Both S.K. Sharma (supra) and B.R. Mehta (supra) proceed on the basis that if the retired government servant lives in an area which is not served by the CGHS he need not become a member of the scheme and still would be entitled to the benefits thereof i.e. for reimbursement under the scheme. We do not agree with the reasoning of the Court in these decisions. In case the retired government employee is situated in a location not serviced by CGHS, or the concerned scheme the retired government servant can legitimately claim reimbursement for any emergency treatment even from a non-recognised hospital at the maximum of the rates prescribed under the scheme. In our view, nothing stops the retired government employee from contributing to the scheme and obtaining treatment in a CGHS area even though he resides in a non CGHS area. Even while living in such non CGHS/other scheme covered area, he is entitled to be compensated for any treatment obtained in an emergency situation at the prescribed rates. This has been held in Narendra Pal Singh v. Union of India and Ors. .
26. To be able to obtain the benefit of a scheme, it is essential that the person/claimant is a member of the said scheme. If the membership is automatic i.e. it comes with the status of the person, the person would be entitled to the benefits thereof, unless he expressly, or by his conduct evinces his intentions not to participate in the scheme - e.g. where he does not pay the subscription due from him. However, where has an option, - whether or not to subscribe to the scheme and the scheme is contributory and voluntary in character, he cannot claim any benefits under the scheme unless he exercises his option to get covered by the scheme and also takes the necessary steps by paying the subscription therefore.
27. We may now refer to the decision in Shyama Malhotra v. Union of India and Ors. . The said decision relies upon the decision in S.K. Sharma (supra), V.K. Jagdhari (supra) and B.R. Mehta (supra). Since in our opinion, they do not lay down the correct proposition of law, this decision also, to that extent, stands overruled.
28. The decision in V.K. Gupta v. Union of India is a case of an employee covered by the CGHS. The dispute was only with regard to the extent of reimbursement to which the retired employee was entitled, and there was no dispute with regard to his entitlement under the scheme.
29. The decision in Promlesh Bhatnagar v. ESIC and Anr. , though based on the decision of S.K. Sharma (supra) and B.R. Mehta (supra), the facts of the case were that the Petitioner's husband, who was ailing took voluntary retirement. He was admitted to AIIMS and subsequently referred to Sir Ganga Ram Hospital. The CGHS card, for which he has made an application was issued to him only on 10.10.2002. He died on the next day. The court found that there was nothing on record to show when the Petitioner's husband had applied for the issuance of the card, and why the same was not issued to him earlier. In these circumstances, the court extended the benefit to the Petitioner, as the denial of the claim was grounded on the non-payment of the subscription and, as aforesaid, there was hardly any time available for the deceased retired employee to make the payment, since the card had been issued only a day prior to his death. This decision is therefore clearly differentiable on facts.
30. In view of our aforesaid discussion, we dismiss this petition leaving the parties to bear their respective costs.