Rajasthan High Court - Jaipur
Justice Mrs Mohini Kapur vs Union Of India And Ors on 11 December, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 14143/2008
Justice Mrs. Mohni Kapur Retired, aged about 75 years, R/o C-3,
Guru Nanak Marg, Malviya Nagar, Jaipur.
----Petitioner
Versus
1. The Union Of India Through The Secretary To The
Government, Ministry Of Health And Family Welfare,
Nirman Bhawan, New Delhi-110011
2. The Director General Of Health Services, Nirman Bhawan,
New Delhi-110011
3. The Additional Director, Central Government Health
Scheme, Kendriya Sadan Parisar, Block-B, Ground Floor,
Sector-10, Vidhyadhar Nagar, Jaipur-302025
----Respondents
For Petitioner(s) : Mr. Prahlad Singh, Adv. For Respondent(s) : Mr. R.D.Rastogi, Addl.Solicitor General for UOI with Mr. C.S.Sinha, Adv.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order Reportable 11/12/2019
1. This case has been pending before this Court since 2008 and relates to claim of reimbursement of surgery conducted of one retired Judge of this Court who is suffering from Parkinsonis disease.
2. The petitioner has stated that as per the advise received from SMS Hospital, Jaipur she was to undergo Deep Brain Stimulation (DBS) implant with Battery which was the facility available only at four places namely; Delhi, Mumbai, Hyderabad (D.B. SAW/604/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:35:15 AM) (2 of 12) [CW-14143/2008] and Chennai and she had chosen to get herself treated at Jaslok Hospital, Mumbai where it was stated to be best facility in the said field. It was also on account of the fact that the case of the petitioner was of a sensitive nature as she already had one Pace Maker fitted in her heart. The treating doctor of the petitioner was on the approved panel of C.G.H.S. earlier and Jaslok Hospital where she had undergone the treatment was also earlier on the panel of C.G.H.S.
3. The respondents have denied the full reimbursement of the treatment of the petitioner on the ground that Jaslok hospital has not been granted recognition under C.G.H.S and they had informed the petitioner in this regard vide their letter dated 12.06.2008 and had refused to grant sanction of the treatment. In reply, the respondents have also stated that treatment at All India Institute of Medical Sciences, New Delhi was available, to which the petitioner has not opted for. The respondents have, therefore, as per OM dated 23.06.2006 only released amount for the DBS implant of Rs.3,60,000/- and travelling expenses of patient, attendant, MRI charges have also been allowed. The respondents have further stated that according to letter dated 12.06.2008. The petitioner is entitled to reimbursement as per the ceiling rates laid down therein.
4. Learned Counsel appearing for the petitioner submits that he has filed an additional affidavit and the petitioner being Judge of High Court was entitled to full reimbursement.
5. Learned Additional Solicitor General of India Mr. R.D.Rastogi pointed out that under the High Court and Supreme (D.B. SAW/604/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:35:15 AM) (3 of 12) [CW-14143/2008] Court Judges, Salaries and Conditions of Service Act, 1976, every retired Judge and his family would be entitled to same facilities in respect of medical treatment and on the same conditions as a retired Officer of the Central Civil Services Class-I and their families are entitled under any rules and orders of the Central Government for the time being in force and, therefore, the CGHS conditions would not be complied with for the purpose of reimbursement. Section 23D of The High Court Judges (Salaries & Conditions of Service) Act, 1954 reads as under:-
"Medical facilities for retired Judges. 23D (1) Every retired Judge shall, with effect from the date on which the High Court Judges (Conditions of Service) Amendment Act, 1976, receives the assent of the President be entitled for himself and his family, to the same facilities as respects medical treatment and on the same conditions as a retired officer of the Central Civil Services, Class I and his family, are entitled under any rules and orders of the Central Government for the time being in force. (2) Notwithstanding anything in sub-section (1) but subject to such conditions and restrictions as the Central Government may impose a retired Judge of the High Court for a State may avail, for himself and his family, any facilities for medical treatment which the Government of that State may extend to him."
6. Additional affidavit has been filed by the petitioner in support of the writ petition wherein in para 4 of the affidavit, it has been mentioned as under:-
"4. That in compliance of this Hon'ble Court's order I am filing herewith a detailed bill in the form of posting sheet showing separate amount under various heads and the same is marked as Annexure-13. From this bill the amount under various heads charged by Jaslok Hospital, Mumbai from me, which I have paid fully to the Jaslok Hospital are as under:-
1. Room charges including I.C.U. 26,000/-
2. Physiotherapy Test.
ECG, Echo, Cardiology Chemistry, (D.B. SAW/604/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:35:15 AM) (4 of 12) [CW-14143/2008] Microbiology X-Ray, Lab. Etc. 9,335/-
3. Visiting Doctors charges 17,500/-
4. O.T.Charges 30,400/-
5. Attendant Lunch/Dinner + telephone charges 1,890/-
6. Total Surcharge from 1 to 5 16,567/-
7. Total Service Charges. 376/-
8. S.B.Surgery 4,81,500/-
9. Gauge,Sponges, Bandages. 614/-
10. Pace Maker, Syringe, needle etc. 3,62,071/-
11. Page 9 to 15 from medicines. 11,978/-
12. Page 16 to 17 for Sterile Gloves, Cautery pad etc. 4,952/-
___________ 9,63,183/-
7. With regard to such an issue relating to payment of reimbursement of medical facilities availed by retired Judges somewhat similar issue came up before the Supreme Court in the case of Ministry of Health & Welfare, Maharashtra Vs. S.C.Malte-(2012) 13 Supreme Court Cases 118. In the aforesaid case, Bombay High Court in a suo motu petition observed that the provisions under the C.G.H.S. Scheme are inadequate and under the scheme only a few hospitals in selected cities are recognised for reimbursement of medical treatment. The matter travelled to Supreme Court and having noticed the difficulties and practical problems which had really become a matter of great concern for the High Courts and the former Judges of the High Courts, the Court passed the following interim order:-
"Meanwhile, the Hon'ble retired Judges would be permitted to get medical treatement from any of the hospital mentioned in para 4 on being referred by a doctor of government hospital and obviously their bills shall be reimbursed expeditiously."
(D.B. SAW/604/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:35:15 AM) (5 of 12) [CW-14143/2008] The High Court had further directed the State Government to frame Rules in this regard. The Supreme Court after noticing the provisions of the Constitution and the provisions of Section 23 of the High Court Judges Salaries & Conditions of Service Act, 1954 observed as under:-
"20.The Court cannot ignore the harsh reality that the rates stipulated under the CGHS and its approved hospitals are much lower than the prevalent rates for providing such treatments in other hospitals. Thus, the State employees and even the former Judges of the Courts have to provide for the difference in rates from their own pockets, if they take treatment from other private hospitals. Of course, an attempt has been made by the Central Government while introducing a specific clause, being clause 15 in the conditions of tender, relating to validity of CGHS rates which requires that for the stipulated period, the empanelled institutions shall not charge more than CGHS rates. But the stated difficulty will still prevail where CGHS is not in force and/or there are no empanelled hospitals. In such a situation, the basic right sought to be protected under the rules would stand violated.
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33. When I discuss the conditions of service of judiciary, they have to be reasonable and free of arbitrariness. Arbitrariness in the power of the State to make unfair conditions of service for the sitting or the former Judges of the High Court would tantamount to putting a kind of pressure on the judiciary, requiring them to run to the Government for every small sickness or for reimbursement of expenditure incurred on some major ailment. The powers vested in the State, as aforenoticed, are not to cause fear or favour or any pressure in the mind of the judiciary, lest the sitting Judges, after retirement, be dependant upon the kindness of the executive. This element of arbitrariness or mercy must be eliminated so as to give judiciary its deserved independence and freedom to work effectively in the public interest and for attainment of the constitutional goals. Any unreasonable restriction would amount to interference with the doctrine of impartiality and fairness applicable to the judiciary in all events.
(D.B. SAW/604/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:35:15 AM) (6 of 12) [CW-14143/2008]
34. Having discussed, in some elaboration, the constitutional colour of this statutory right, I must refer to the facts of the present case. I do not see any reason for the State of Maharashtra to have withdrawn its consent for substitution of the words 'availed of' in place of 'available'. It had ample time at its disposal, as various matters came up before the Court on a number of hearings, particularly prior to such substitution. It is expected of the State to act in accordance with the accepted canons of governance and not to render the judicial proceedings ineffective and inconclusive. The stand of the Government ought to have been in favour of a condition which would bring judicial independence, impartiality and fearlessness to the fore rather than its restriction, which apparently was of unreasonable nature. Is it the fault of the citizens or that of the Government servants that the CGHS Scheme is not available in a large number of cities in India and wherever it is available, it is proving ineffective, as people fail to receive their reimbursement claims for months together, despite instructions issued by the concerned Ministry? It will be unfortunate if a sitting Judge has to be continuously under the fear as to what his medical facilities will be after retirement. His service conditions should be definite and favourable to building the public confidence in the administration of justice rather than bringing unreasonableness and arbitrariness in the State action.
and directed as under
39.1. I do not find any merit in the present appeals.
39.2. Rule 2(a) of the draft rules shall remain in the form as directed by the High Court. The word 'available' shall stand substituted by the words 'availed of'. The State of Maharashtra is hereby directed to notify these rules forthwith.
39.3. Henceforth, there shall be complete uniformity in the 'grant of medical benefits' to the former Judges of various High Courts.
39.4. It may not only be desirable but necessary for the Centre and the State Governments to amend and alter the existing rules. If no rules are in force, to frame the rules on such uniform lines.
39.5. In relation to the medical facilities, the former Judges of the High Courts would be placed at parity with the facilities available to the sitting Judges and their dependent family members. Providing such benefit and bringing uniformity in the rules shall be in the interest (D.B. SAW/604/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:35:15 AM) (7 of 12) [CW-14143/2008] of the State administration as well as administration of justice.
39.6. All the medical bills of the former Judges of various High Courts shall be submitted to the Registrar General of the concerned High Court, who shall, subject to approval of the Chief Justice of that Court and in accordance with the rules in force, pay such bills (upon due scrutiny) to the former Judges.
39.7 The Union Government and the State Governments are directed to provide such 'head of expenditure', being part of the High Court budget of the respective High Courts for reimbursement of medical bills of the former Judges. In other words, the payment would be directly made by the High Court to the former Judges and it, in turn, would be reimbursed by the State Government. 39.8 All the former Judges of the High Courts would be entitled to receive medical facilities from the hospitals so empanelled by the Central or the State Governments, as the case may be.
39.9. Till appropriate rules are framed by the appropriate authority, these directions shall remain in force and shall be abided by the executive."
While Justice Swatanter Kumar, J. made the aforesaid observations, Justice Patnaik disagreed in this aspect. However, while interpreting Section 23-(D) of the Act, Justice Patnaik observed in para 45 as under:-
"45. It will be clear from language of sub-section (1) of Section 23D of the Act quoted above that every retired Judge is entitled for himself and his family, to the same facilities as respects medical treatment and on the same conditions as a retired officer of the Central Civil Services, Class-I and his family, are entitled under any rules and orders of the Central Government for the time being in force. Sub-section (2) of Section 23D of the Act, however, provides that 23-D(2) Notwithstanding anything in sub-section (1) but subject to such conditions and restrictions as the Central Government may impose a retired Judge of the High Court for a State may avail, for himself and his family, any facilities for medical treatment which the Government of that State may extend to him.
Thus, under sub-section (2) of Section 23D of the Act, the power is vested in the Government of the State to (D.B. SAW/604/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:35:15 AM) (8 of 12) [CW-14143/2008] extend facilities for medical treatment to a retired Judge of the High Court for that State and his family different from the facilities provided to a retired officer of the Central Civil Services, Class-I and his family. This statutory power is that of the State Government and cannot be exercised by the High Court under Article 226 of the Constitution. The appellant, therefore, was right in urging a ground in these appeals that the High Court had no jurisdiction to direct the State Government to frame any particular rule regarding medical facilities of the retired Judges of the Bombay High Court."
8. In (2014) 12 Supreme Court Cases 1- P.Ramakrishnam Raj Vs. Union of India & Ors., the Three Judges Bench of Supreme Court again examined this aspect and observed as under:-
"27. It is brought to our notice that in pursuance of the said Resolution, most of the States in the country have extended various post-retiral benefits to the retired Chief Justices and retired Judges of the respective High Courts. By G.O.Ms.No. 28 dated 16.03.2012 issued by Law Department, Government of Andhra Pradesh sanctioned an amount of Rs.14,000/- per month to the retired Chief Justices of the High Court of Andhra Pradesh and an amount of Rs.12,000/- per month to the retired Judges of the High Court of Andhra Pradesh for defraying the services of an orderly, driver, security guard etc. and for meeting expenses incurred towards secretarial assistance on contract basis and a residential telephone free of cost with number of free calls to the extent of 1500 per month over and above the number of free calls per month allowed by the telephone authorities to both the retired Chief Justices and Judges of the High Court of Andhra Pradesh w.e.f. 01.04.2012.
28. While appreciating the steps taken by the Government of Andhra Pradesh and other States who have already formulated such scheme, by this order, we hope and trust that the States who have not so far framed such scheme will formulate the same, depending on the local conditions, for the benefit of the retired Chief Justices and retired Judges of the respective High Courts as early as possible preferably within a period of six months from the date of receipt of copy of this order."
(D.B. SAW/604/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:35:15 AM) (9 of 12) [CW-14143/2008]
9. In (2016) 15 Supreme Court Cases 602- Justice V.S.Dave, President, The Association of Retired Judges of Supreme & High Courts Vs. Kusumjit Sidhu & Ors. and M.Ramachandran Vs. Rajiv Mehrishi & Ors. the Supreme Court directed as under:-
"The Supreme Court directed all States & Union Territories to comply within six weeks with its direction to provide medical facilities to retired Cjs & Justices of High Court, their spouses and dependent family, members at par with the sitting Judge. It had directed States & Union Territories to provide former High Court Chief Justices & Justices & their dependent family members all facilities at par with sitting Judges, reimbursement for medical treatment in private hospital without prior approval of the State Government. The Chief Secretaries will have to appear in person before it if the orders are not complied with."
10. However, it is to be noticed that a High Court Judge is not a Government servant, he is not to be treated as same class as the others to whom Central Government Health Schemes applies. Granting benefit of Central Government Health Scheme to a Judge does not mean that the reimbursement to which a Judge is entitled for payment, would be only governed as has been granted to other Central Government servants as he cannot be put in the same category as that of other government servants of Union of India.
11. In the considered opinion of this Court Article 112(3)
(d)(iii) enunciates that the pension payable to the High Court Judges are charged on the consolidated funds of India as per Article 202(3)(d). The expenditure in respect of the salaries and allowances of the High Court Judges is charged on the consolidated fund of each State.
(D.B. SAW/604/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:35:15 AM) (10 of 12) [CW-14143/2008] Thus, apparently the Judge cannot be bracketed with the Central Government Services.
12. It is relevant here to quote Article 112(3)(d)(iii) of the Constitution of India and Article 202(3)(d) of the Constitution of India which are as follows:-
112(3)(d)(iii):-
112.Annual financial statement.-(1) The President shall in respect of every----------------
(2)--------------
(3) The following expenditure shall be
expenditure-------------
(a)---------
(b)-----------
(c)-----------
(d) (i)-------------------
(ii)--------------
(iii) the pensions payable to or in respect of Judges of any High Court which exercises jurisdiction in relation to any area included in the territory of India or which at any time before the commencement of this Constitution exercised jurisdiction in relation to any area included in [a Governor's Province of the Domination of India];
Article 202(3)(d) of the Constitution of India:-
202. Annual Financial statement.- (1) ----------
(2)-----------
(3) The following expenditure shall be expenditure charged on the Consolidated Fund of each State-
(a)-------
(b)---------
(c) --------
(d) expenditure in respect of the salaries and allowances of Judges of any High Court;
13. In view thereof, the treatment of a retired Judge conducted at Jaslok Hospital, Mumbai cannot be said to be an illegal expenditure for denying the reimbursement. The circular (D.B. SAW/604/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:35:15 AM) (11 of 12) [CW-14143/2008] placed on record by the respondents in their reply would, therefore, have to be write down to mean that if a Judge of a High Court or Supreme Court has undertaken treatment in any hospital, he/she would be entitled to get the reimbursement done under the CGHS Scheme and the direction as laid down under the C.G.H.S. Scheme for getting treatment only done with their approval would not have any application to a Judge. The benefit is being extended not as a courtesy but as a process by which reimbursement can be made for treatment of a retired Judge.
14. This view is based on the provisions which relate to the Condition of Service and benefits to which a Judge of the High Court is entitled to.
15. Keeping in view above, this Court finds that while the respondents have granted the payment for the DBS Implant, it has failed to release payments relating to the surgery conducted for the purpose of DBS Implant. Admittedly the DBS Implant cannot be conducted without proper treatment and ancillary charges will also necessarily occurred. It would be wholly impracticable to allow merely the reimbursement of the DBS implant and not allow the surgery charges. Accordingly holding the action of the respondents as unjustified in denying the claim of the petitioner, it is directed that the respondents shall release the claim charges for the expenses incurred in surgery and implantation of the DBS .
16. I have considered the submissions.
17. On careful reading of aforesaid Section, it is apparent that a retired Judge of a High Court of a State has even option to (D.B. SAW/604/2020 has been filed in this matter. Please refer the same for further orders) (Downloaded on 07/06/2021 at 06:35:15 AM) (12 of 12) [CW-14143/2008] avail facilities as available to a Central Officer of the Civil services and also facilities for medical treatment which the Government can extend to him. Thus, it cannot be said that petitioner is restricted by the conditions which may apply to other Central Civil Servant only. This was the concept of civil servant which cannot be made applicable on a retired Judge who was holding the constitutional post.
18. In view thereof, this Court deems it proper to allow this writ petition to the extent of directing the respondents to release the claim amount for the treatment undertaken at Jaslok Hospital, Mumbai which includes room charges including ICU, Physiotherapy Tests, ECG, Echo, Cardiology Chemistry, Microbiology X-Ray, Lab Etc. Visiting Doctors charges, OT charges, Attendant Lunch/Dinner +telepone charges, Total surcharge from 1 to 5, Total service charges, S.B.Surgery, Gauge, Sponges, Bandages, Pace maker, syringe, needle etc., Page 9 to 15 for medicines and pages 16 to 17 for Sterile gloves, Cautery Pad. Etc., as evidently the same form part of said charges.
19. The said amount shall be released to the petitioner now, within a period of one month henceforth and the amount shall carry interest at the 9% per annum from the date the same was payable.
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