Central Administrative Tribunal - Delhi
Unknown vs Union Of India on 27 March, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
TA No. 7 of 2012
New Delhi this the 27th day of March, 2014
Honble Mr. Ashok Kumar, Member (A)
Honble Mr. Raj Vir Sharma, Member (J)
Chandra Bhan Yadava,
S/o Sh. Ganga Ram Yadav,
R/o D-48, CDA (Pension) Colony,
Dropati Ghat,
Allahabad, UP
. Applicant
(By Advocate: Shri Ram Avadh Yadav)
VERSUS
Union of India
through its Secretary,
Ministry of Defence,
South Block, New Delhi
2. The Ministry of personnel,
Public Grievances and Pensions,
Department of Administrative Reforms
And Public Grievances,
Through its Secretary,
Sardar Patal Bhawan,
Sansad Marg,
New Delhi-110001
3. The Ministry of Health & Family Welfare,
Government of India,
Through its Secretary,
Nirman Bhawan,
Maulana Azad Road,
New Delhi-110011
4. The Director CGHS
S-545, Nirman Bhawan,
Maulana Azad road,
New Delhi-110011
Controller General of Defence Accounts
Through its Accountant
Ulan Batar Road, Palam,
Delhi Cantt.-1100010
..Respondents
(By Advocate: Shri Subhash Gosain)
O R D E R
Ashok Kumar, Member (A) The applicant has filed this TA on the ground that the Respondent No.3 has arbitrarily fixed age limit of 25 years for dependent children of CGHS Card Holders for availing medical facilities under CGHS & Central Services (Medical) Attendance Rules, 1944 and the alleged illegal and unlawful denial of continuance of CGHS facilities to the son of applicant after his transplantation of kidney.
2. Briefly, the applicant is working as Senior Accounts Officer in the Office of the PCDA (Pension) Allahabad under Ministry of Defence and is beneficiary of CGHS. His son is also a beneficiary and is covered under the scheme because of the applicant holding CGHS Card. His son suffered from chronic kidney problem and both his kidneys failed. He underwent kidney-transplantation on 30.1.2010 at Apollo Hospital, New Delhi and the expenses of the transplantation and post operative treatment continued upto 20.07.2010 as a CGHS beneficiary. In the meanwhile, the respondent CGHS vide order dated 26.11.2010 stopped CGHS facilities to the son of the applicant on the ground that such facilities cannot be continued beyond 25 years of age in view of Office Circular dated 29.08.2007. The applicant states that the post- operative treatment of his son involves a heavy amount which is larger than his monthly salary. It is further stated that the CGHS facilities are available till his son starts earning or attains the age of 25 years, whichever is earlier. The upper age limit for his son was removed after the stay order granted by the Honble High Court of Delhi on 17.9.99 in CWP No.2542/1996. This writ petition was dismissed on 29.11.2006. The applicant has assailed the fixation of age limit of 25 years for dependent son since he was suffering from permanent disability on the ground that the said restriction is highly arbitrary and discriminatory as provides different age limits for similarly placed dependents of Central Government servants for availing CGHS medical facilities, and is also alleged to be violative of Articles 14, 19 and 21 of the Constitution of India. The applicant made representation for sympathetic consideration to enable continuance of CGHS facilities which was rejected in view of the provisions in Notification dated 29.08.2007 at Annexure P-7. He again made representation stating that the treatment is necessary to save his sons life and that the son is still unmarried and unemployed and is wholly dependent on him. The same was not agreed to vide the impugned communication dated 15.03.2011 at Annexure P-11. The applicant has, therefore, prayed for the following reliefs:-
(a) issue a appropriate writ order or directions in the nature of certiorari, quashing the Office Memorandum No.4-24/96-C&P/CGHS/CGHS (P) dated 31.05.2007 being contrary to the provisions of the Constitution of India.
(b) issue appropriate writ order or directions in the nature of mandamus, directing respondents to continue to provide the post kidney transplant medical facilities relating to the kidney transplantation to the son of the petitioner from August, 2010 onwards.
(c ) issue appropriate writ order or directions in the nature of mandamus, directing respondents to include the case of kidney transplant in the light of permanent disability as a kidney transplanted patient cannot survive without medicines.
(d) pass such other and further orders as this Honble Court may deem fit and proper.
3. Counter reply has been filed on behalf of the respondents mainly controverting the claims preferred by the applicant in the present TA in the light of OM dated 31.05.2007 (Annexure R-1). The age limit for dependent son as fixed by the respondents on 31.05/2007 (Annexure R-1) is till he starts earning or attains the age of 25 years, whichever is earlier. In the case of dependent daughter it is restricted till she starts earning or gets married, irrespective of the age limit, whichever is earlier. The respondents have, therefore, stated that under this provision, the benefits of CGHS medical treatment cannot be continued to the son of the applicant.
4. The said OM of 31.05.2007 also provides that a dependent son suffering from any permanent disability of any kind (physical or mental) would be entitled to get CGHS benefits irrespective of any age limit. Respondents have stated that renal failure is not included in the aforenoted OM as a disability and therefore the applicants son cannot be considered as having disability. Respondents have specified in OM dated 29.8.2007 (Annexure R-2) that disability would be the same as defined in Section 2(i) The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 which is reproduced below:-
(i) disability means- blindness; low vision; leprosy-cured; hearing impairment; locomotor disability; mental retardation; mental illness;
Thus, the applicants son cannot be given the CGHS benefit under the disabilities category also.
5. In rejoinder filed to the counter reply, the grounds stated in the TA have been reiterated and further that renal failure comes under the disabilities category and hence the applicants son should continue to receive CGHS benefits without any upper age limit as a defendant son suffering from permanent disability which does not prescribe any age limit.
6. We have considered the pleadings as well documents on record. Both parties were heard through Shri Ram Avadh Yadav, learned counsel for the applicant and Shri subhash Gosain, learned counsel for the respondents.
7. We are unable to grant any relief to the applicant because of the provisions contained in OM dated 31.05.2007 of which is at Annexure R-1, which fixed the age limit for dependents of CGHS beneficiaries. We also do not find any infirmity in the view taken by the respondents that renal failure is not a part of disability covered under the Disabilities Act and that the applicants son cannot therefore be covered under the category of permanent disability and thereby entitle the applicants son to receive medical treatment beyond any age limit. The OM is based on reasonable classification and is based on a policy duly notified by the respondents on such reasonable classification.
8. The Honble Supreme Court has very categorically held in P.U.Joshi & Ors. Vs. The Accountant General, Ahmedabad & Ors. (2003) 2 SCC 632 as follows:-
10. We have carefully considered the sub-missions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/subtraction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service. (emphasis provided) Under the aforenoted directions of the Honble Apex Court, Statutory Tribunals are not to interfere in matters of policy since it lies with the competence of Government to change the policy and rules relating to benefits of service etc.
9. In view of above, we do not find sufficient reason to interfere with the impugned decision of the respondents. OA, being devoid of merits, cannot be allowed and is accordingly dismissed. Parties shall bear their own costs.
(Raj Vir Sharma) (Ashok Kumar) Member (J) Member (A) /usha/