Central Administrative Tribunal - Delhi
Tara Chand Sharma vs Union Of India (Uoi) And Ors. on 3 August, 2007
ORDER V.K. Agnihotri, Member (A)
1. Through this MA the applicant has sought implementation of the following order of this Tribunal in OA No. 678/2006, decided on 14.11.2006:
5. Upon hearing learned Counsel for respondents, I find that respondents have not passed any specific order keeping in view the law laid down in aforementioned judgments, which are binding in the given circumstances. Therefore, it is incumbent upon the res1pondents to pass necessary detailed speaking & reasoned order after considering applicant's claim, particularly keeping in view the law laid down in the afore-mentioned judgments. Accordingly, I direct the concerned authorities to pass said order within a period of forty-five day from the date of receipt of a copy of this order.
2. The question to be decided is whether the orders issued by the respondents in their letters dated 23.02.2007 and 05.07.2007 satisfy the requirement of the compliance of the order of this Tribunal aforementioned.
3. The MA was filed on 15.01.2007. When the matter came up for hearing on 28.03.2007, the respondents placed before this Tribunal a copy of their letter dated 23.02.2007 addressed to the applicant, which reads as follows:
Sub : Speaking and reasoned orders as per direction of Hon'ble CAT Court judgment dated 14/11/2006 in O.A. No. 678/2006 - regarding After considering your claim, the speaking and reasoned orders as per direction Court judgment dated 14/11/2006 is as under:
1. The petitioner retired from Central Vehicle Depot on 31/08/1980. he availed the treatment between the period from 22/12/2002 to 10/02/2003 in various private hospitals. After that he got his CGHS card made on 04/03/2003. It means, he obtained the CGHS Card only after availing the treatment in question. As per CGHS guidelines vide O.M. dated 05/11/1993 & 01/07/1999 (Copy enclosed), if CGHS card is not got issued within the grace period of 03 months of retirement, the pensioner will not be entitled for any medical reimbursement expenses for that period of treatment, which happens to fall between the actual date of renewal of the Card and date of which the card could be renewed. In such cases the medical claim could be considered only from the actual date of card got made.
2. The petitioner who was residing in CGHS uncovered areas, was entitled for a fixed medical allowance of Rs. 100 per month for day to day OPD expenses and could have obtained CGHS card for Indoor Hospitalization treatment from the nearest CGHS covered city within the stipulated period before the availing of treatment.
3. The orders of Hon'ble High Court dated 07/10/2005 in case of Sh. V.K. Jagdhari, in WP(C) No. 7493/02 were implemented by Deptt. of Health as special case within the advice Not be quoted as a precedence.
The case of Shri T.S. Oberoi and Ors. in LPA 898/2002 was in connection with reimbursement of Justice Chawla as a special position being a Judge of superior court and Judge of a High court cannot be equated as a par with the other Administrative executives of other Ministry/ Department of Govt. of India.
4. CS (MA) rules are also not applicable to the CGHS pensioners. The O.M. dated 05/06/1998 was only a inter-ministerial communication wherein the Min. of Health & Family welfare suggested to extend the CS (MA) rules 1944 to Pensioners residing in CGHS uncovered areas by their parent department in consultation of Department of Pension & Pensioners Welfare.
Since you did not obtain the CGHS card within the stipulated grace period of 03 months of retirement and was not having valid CGHS CARD at the time of treatment, CGHS is unable to consider your claim under the existing guidelines/rules. In addition to it, CS (MA) rules are also not applicable to Central govt. pensioners.
Sd/-
(Dr. Ramesh Anand) Addl. Director, CGHS (HQ)
4. Thereafter, this Tribunal gave the following direction, when the matter came up for hearing on 29.03.2007:
1. The Tribunal had passed an order on 14.11.2006 in OA 678/2006 wherein three judgments had been noted as having been relied upon by the applicant and inter alia keeping the same in view the following order had been passed:
5. Upon hearing learned Counsel for respondents, I find that respondents have not passed any specific order keeping in view the law laid down in aforementioned judgments, which are binding in the given circumstances. Therefore, it is incumbent upon he respondents to pass necessary detailed speaking & reasoned order after considering applicant's claim, particularly keeping in view the law laid down in the afore-mentioned judgments. Accordingly, I direct the concerned authorities to pass said order within a period of forty-five days from the date of receipt of a copy of this order.
6. With the above directions, OA stands disposed of.
2. The respondents have placed before the Court the detailed speaking order in compliance with the directions of the Tribunal and this order is dated 23.2.2007 and taken into account the case law as reflected in judgment of the Tribunal, namely, the decision in the cases of T.S. Oberoi and Ors. & V.K. Jagadhari but omits to consider the judgment of the Hon'ble High Court of Delhi in S.K. Sharma v. UOI and Anr. 2002 (64) DRJ 620. Learned Counsel for the applicant submits that in this judgment the issue of medical facilities even in cases where there is no CGHS card has been decided. At this stage of execution of order of Tribunal it is not for the Court to go into the merits of the matter or given any fresh directions. However, learned Counsel for the respondents fairly submits that if the Court allows them time, they would consider the case of the applicant in terms of the directions of the Tribunal keeping in view also the judgment of the Hon'ble High Court of Delhi in S.K. Sharma's case supra.
3. Let the respondents pass an order in compliance of the directions of the Tribunal keeping in view also the judgment of the Hon'ble High Court of Delhi mentioned above within a period of six weeks from the date of receipt of a copy of this order and file copy of the same after service upon the applicant.
(Emphasis supplied)
5. Thereafter, the respondents issued the following letter dated 05.07.2007 in compliance of the direction of this Tribunal:
Sub : Speaking and reasoned order as per directions of Hon'ble CAT Judgment dated 29/3/2007 in MA No. 150/2007 (OA No. 678/2006).
Ref : (i) Hon'ble Court Judgment dated 14.11.2006.
(ii) Speaking & reasoned order passed vide letter dated 23.2.2007.
Sir, This is in continuation of earlier letter dated 23.2.2007 (Copy enclosed for ready reference), it is further clarified that:
a) Shri S.K. Sharma was staying at Bareilly, a city not covered by CGHS, but in your case the address in your Writ Petition as well as in your CGHS card has been given as that of Delhi. In addition to it as per hospital record dated 22.12.2002 of M/s Sarvodaya Hospital (i.e. prior to treatment of CABG), the address given again is that of Delhi. Hence, there is no parallel between your case and that of Shri S.K. Sharma.
It means that the petitioner could have got the card issued at CGHS Delhi well before availing of treatment of CABG, which he did after the treatment. Hence the explanation given by the petitioner for not obtaining the CGHS card before his treatment is not justified. It appears that the petitioner opted not to get his token card issued before the treatment just to avoid the payment of contribution for issue of CGHS Pensioner card.
b) CS (MA) Rules, 1944, is applicable in areas not covered by CGHS. This rule, however, is not applicable to retired officials. Even presuming that you were staying in an area not covered by the CGHS, your attention is invited to para (6) of judgment dated 18.10.2006 of Hon'ble high court of Kerala at Ernakulam in WP (C) No. 18313 of 2006 O.A. No. 242/2005 of CAT Ernakulam in matter of UOI v. V. Gopalkrishnan.
The contention of the discrimination also cannot be accepted because CGHS Scheme is a different Scheme as compared to the CS (MA) Rules. CGHS Scheme is available only in notified areas like certain important cities. There is real nexus for covering the persons in important cities alone. Therefore, when there is such nexus for implementing CGHS, and implementation CGHS, and implementation and extension of CS (MA) Rules is on a different footing, Article 14 cannot be pressed into service any more.
In view of the current facts & circumstances as mentioned above, the Ministry of Health & F.W. is not able to consider your instant reimbursement claim, either under existing CGHS guidelines or under CS (MA) Rules, 1944.
Yours faithfully Sd/-
(Dr. Ramesh Anand) Additional Director (CGHS) (HQ)
6. The applicant has filed a rejoinder on 26.07.2007 in the context of letters dated 23.02.2007 (supra) and 05.07.2007 (supra) issued by the respondents.
7. In the course of oral arguments, Shri B.S. Jain, learned Counsel for the applicant, has contended that the Tribunal in its order in OA No. 678/2006 had specifically drawn attention to certain cases where relief sought by the applicants therein had been granted, as follows:
3. Shri B.S. Jain, learned Counsel for applicant strenuously urged that holding CGHS Card is not a condition, which can be insisted upon by respondents particularly in view of the judgment of Hon'ble Delhi High Court in S.K. Sharma v. Union of India and Anr. 2002 (64) DRJ 620. Reliance was also placed on Division Bench judgment of said Court in LPA 898/2002 Union of India v. T.S. Oberoi and Ors. besides the judgment in V.K. Jagadhari v. Union of India 2006 (1) ATJ 282.
8. Learned Counsel stated that the contention of the respondents, in their letter dated 23.02.2007, that the cases of V.K. Jagadhari and T.S. Oberoi cannot be treated as precedent to decide the case of the applicant, is violative of Articles 14 & 16 of the Constitution of India. In this context, he invited attention to the judgment of the Hon'ble Supreme Court in the case of Union of India and Ors. v. Tulsi Ram Patel 1985 SCC (L&S) 747, wherein it was held that treating one person differently from another without any rational basis is arbitrary and discriminatory.
9. Learned Counsel contended that this Tribunal in its order dated 14.11.2006 in OA No. 678/2006 has recorded that it is an admitted fact that the applicant has settled down in his native place, i.e. village & P.O. Gumana, Distt. Sonepat (Haryana), as such, the contention of the respondents in their letter dated 05.07.2007 (supra) that the applicant is residing in Delhi and hence is not entitled to the benefit in terms of the judgment in the case of Sh. S.K. Sharma (supra), cannot be accepted. In any case, the respondents reimbursed the medical claim of Shri T.S. Oberoi and Justice Mr. M.K. Chawla, despite the fact that they were living in Delhi before they got their CGHS cards made.
10. Placing reliance on the various judgments aforementioned, learned Counsel argued that right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities to its retired employees. As observed in the case of S.K. Sharma (supra), this right cannot be denied on technicalities and flimsy grounds.
11. Learned Counsel for the applicant also cited the judgments of the Hon'ble High Court of Delhi in the case of B.R. Mehta v. Union of India and Ors. ; and Govt. of N.C.T. of Delhi and Ors. v. Som Dutt Sharma to argue that retired Central Government employees cannot be deprived of reimbursement of medical charges though they may not hold CGHS card and even if they are staying in non-CGHS areas. If a scheme is formulated for the benefit of pensioners, he cannot be deprived of its benefit unless beneficiary opts out.
12. Shri H.K. Gangwani, learned Counsel for the respondents, stated that as per the order of this Tribunal in OA No. 678/2006 (supra), read with direction of this Tribunal, dated 29.03.2007, in the present MA, the respondents were required to pass a detailed, speaking and reasoned order, keeping the view the law laid down in the three judgments aforementioned. The respondents have accordingly passed the orders dated 23.02.2007 (supra) and 05.07.2007 (supra) and if the applicant has any further grievance, he is free to challenge the orders of the respondents aforementioned. This challenge, however, cannot be made by way of a MA filed for implementation of the order of this Tribunal.
13. I have heard the learned Counsel for the parties and perused the material on record.
14. When this matter came up for hearing on 29.03.2007, this Tribunal has observed that respondents order dated 23.02.2007 takes into account the judgments in the cases of T.S. Oberoi and Ors. (supra) and V.K. Jagadhari (supra), but they had omitted to consider the judgment of the Hon'ble High Court of Delhi in the case of S.K. Sharma v. Union of India and Anr. (supra) and, therefore, this Tribunal directed the respondents to pass an order in full compliance of the directions of this Tribunal, keeping in view also the judgment of Hon'ble High Court of Delhi in the case of S.K. Sharma (supra). The respondents have accordingly passed their order dated 05.07.2007 in which they have discussed in detail the case of S.K. Sharma and distinguished it from the case of the applicant.
15. I find merit in the averment of the learned Counsel for the respondents that in this MA for implementation of the order of this Tribunal in OA No. 678/2006 (supra), this Tribunal cannot go into the merits of the orders passed by the respondents in compliance of the orders of this Tribunal. This point was also noticed in the order of this Tribunal dated 29.03.2007 in the present MA.
16. Taking the totality of facts and circumstances of the case into consideration, I am of the opinion that there is substantial compliance of the orders of this Tribunal in OA No. 678/2006 (supra) by the respondents in view of their letters dated 23.02.2007 and 05.07.2007.
17. In the result, in view of the letters of the respondents dated 23.02.2007 and 05.07.2007, the present MA has become infructuous and is disposed of accordingly. The applicant is, however, given the liberty to challenge the said orders of the respondents, if he is so advised. There will be no order as to costs.