Central Administrative Tribunal - Delhi
Subhash Chander vs Expenditure on 23 October, 2024
1
Item No. 44 (C-4) O.A No. 1345/2017
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1345/2017 With M.A No. 3796/2022
And M.A No. 1748/2018
Reserved on : 14.10.2024
Pronounced on : 23.10.2024
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Subhash Chander,
S/o. Sh. Maman Ram Presently residing at
B-10, Mother Dairy Employees CGHS Ltd,
Plot No. 6, Sector-5 Dwarka, New Delhi-110 075.
Last employed in the office of
Chief Controller of Accounts
Ministry of Home Affairs,
North Block, New Delhi as
Assistant Controller of Accounts ....Applicant
(Applicant in person)
Versus
Union of India through
1. The Secretary,
Ministry of Finance, Department of Expenditure
North Block,
New Delhi-110001.
2. The Secretary,
Ministry of Personnel & Training
North Block,
New Delhi-110 001.
2 OA No.1345/2017
Item 44 (C-4)
3. The Secretary,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi - 110 001.
4. Chief Controller of Accounts,
Ministry of Home Affairs,
North Block New Delhi. ....Respondents
(By Advocate : Mr. Ravi Kant Jain and Ms. Nidhi Jain)
ORDER
Hon'ble Dr. Sumeet Jerath, Member (A):
M.A No. 3796/2022 :-
The instant M.A filed for condonation of delay in filing the OA stands allowed for the reasons mentioned therein.
O.A. No. 1345/2017 :-
The instant OA has been filed by the applicant Mr. Subhash Chander under Section 19 of the Administrative Tribunals Act 1985, seeking the following reliefs :-
"8 (0) CGHS facilities available to Central Government pensioners are decided on the basis of one-time option obtained before their retirement; by head of office as provided in Ministry of personnel Pubic Grievances & Pension OM No. 45/57/97-P & PW(C) dated 19.12.1997, not on the basis of date of application for CGHS card. The impugned order dated 1" December, 2023 may be dismissed as false, hypothetical, baseless and contradictory to undisputed Para 5(1) of OM No.5.11011/11/2016-CGHS(P)/EHS dated 09.01.2017, as explained in sub para (ii) and (iv) of Para 5 of this amended OA.3 OA No.1345/2017
Item 44 (C-4)
(ii) Employees residing in non-CGHS area are covered under CS(MA) Rules 1944 but Pensioners are not. Free medical facilities are the responsibility of the respondents as part of employment and these facilities are provided without there being any provision for any contribution. Since the benefit of CGHS has now been extended to those even not covered under CGHS or CS(MA) Rules 1944, it would be arbitrary and unconstitutional under Article 14 & 16 to demand a considerable amount for cashless card from petitioner/petitioner who have opted for non-CGHS area after their retirement.
(iii) Petitioner had opted to reside in a non-CGHS area after retirement and had submitted proof of his transfer to respondent no. 4. As such, he is covered under Para 2(b)(3) of OM No. S. 14025/23/2013-EHSS dated 29th September, 2016 issued by Ministry of Health & Family Welfare and is entitled to fixed medical allowance for OPD treatment and CGHS for IPD treatment.
(iv) To determine and decide what should be the contribution for CGHS card applicable to the petitioner under Para 5(1) of OM No.S.11011/11/2016-CGHS(P)/EHS dated 09.01.2017 or any other CGHS guidelines referred to in Para 2(b)(3) of OM S. 14025/23/2013-EHSS dated 29th September, 2016 and hold that since employees residing in non CGHS area haven't to make any contribution towards CGHS, as such, petitioner is also not required to pay any contribution towards CGHS card after retirement.
(v) Arrears of Fixed medical allowance and cost of the suit may also be awarded in favour of applicant."
2. The short issue involved in this case is that the applicant who appeared in person superannuated from the post of Assistant Controller of Accounts, Ministry of Home Affairs. After his retirement on 30.04.2016, he opted for CGHS benefit but was asked to deposit Rs.78,000/- by the CGHS authorities which he alleged to be against the rules. According to him, the representation filed by him was also not decided on merits. 4 OA No.1345/2017 Item 44 (C-4) Aggrieved, he filed OA No. 1345/2017 which was disposed of by this Tribunal with a direction to the respondents to reconsider and decide his representation dated 06.03.2017 in terms of para 5(i) of OM dated 09.01.2017 and to pass a reasoned and speaking order afresh within two months. He contended that the reply filed by the respondents on 13.12.2023 is not on merit. Unsatisfied with the same, he filed the present OA.
3. The applicant based his arguments on the following grounds :-
"5.(i) The impugned order File No. 2-40/2017/CGHS/VC/145 dated 1 December, 2023 is against Para 5(i) of OM No. S. 11011/11/2016- CGHS(P)/EHS dated 9th January, 2017. Despite of the specific orders dated 20.09.2019, passed by Hon'ble Central Administrative Tribunal, respondents did not passed orders on Para 5(i) of the OM dated 9th January 2017 (supra) and this Para still stands undisputed.
(ii) Impugned order dated 01.12.2023, read with OM No. 5.
11011/11/2016-CGHS (P)/EHS dated 09/02/2017 (Annexure A-1) is hypothetical. This OM provides that 'those employees superannuating on or before 31/01/2017 and had submitted their application on or before 31/01/2017 may be allowed the subscription at old rates effective from 1 June, 2009'. Employees superannuating from afternoon of the last working day of the month are not the pensioners from that date, nor they have pension papers to apply for the card, nor CGHS offices are open to receive the application.
(iii) The impugned order also violates OM No. 45/57/97-P & PW(C) dated 19.12.1997 (Annexure A-2). Para 3 of this OM provides that head of office shall obtain one time option from retiring employees for medical facilities under CGHS or medical allowance. That option was filed by the applicant (Annexure-A-3) and he had opted for CGHS facility and had also declared that after retirement he would reside in a non- CGHS area. His CGHS facilities were to be determined on 5 OA No.1345/2017 Item 44 (C-4) the basis of option that he had given, not on basis of date of application for CGHS card or on other grounds as contended by the respondents.
(iv) The impugned order is arbitrary and also violates OM No. S. 11011/11/2016-CGHS (P)/EHS dated 21 Feb. 2017 (Annexure A-4) Vide this OM employees superannuating on 31 Jan. 2017 were issued CGHS card up to 15th March, 2017 at old rated that existed before the revision dated 9th January, 2017. This was not permissible under the impugned order dated 01.12.2023.
(v) Pensioners residing in non-CGHS area didn't pay any contribution towards CGHS when they were in service. As such, under Para 5(i) or Para 5(v) of the OM No. 5.11011/11/2016-CGHS(P)/EHS dated 09.01.2017, no payment is required for CGHS card from pensioners residing in non-CGHS area or covered under CS(MA) Rules, 1944. The impugned order File No. 2-40/2017/CGHS/VC/145 dated 1 December, 2023 is arbitrary and discriminatory.
(vi) Vide OM No. S. 14025/23/2013-EHSS dated 29th September, 2016 (Annexure A-5) it was informed that pensioners residing in non CGHS area though not covered under CS(MA) Rules 1944, yet are entitled to:-
1) Fixed medical allowance @ Rs. 500/- per month (revised from time to time)
2) Benefit of CGHS (OPD and IPD) after making required contribution. There are no orders as on date for contribution from employees/pensioners residing in non-
CGHS area.
3) They also have the option to avail Fixed Medical Allowance for OPD treatment and CGHS for IPD treatment.
4) They are also entitled to reimbursement of medical claims under CS(MA) Rules 1944, which are not applicable to them till date.
These facilities are not available to pensioners residing in area covered under CGHS. This provision is unconstitutional, arbitrary and discriminatory as it discriminates among pensioners on the basis of area of residence that is not permissible under Constitution of India.
(vii) Medical facilities to pensioners at the cost of union of India are the responsibility of Government of India and 6 OA No.1345/2017 Item 44 (C-4) CGHS is only a facilitating agency. To charge for the cashless card from one pensioner and to provide for medical reimbursement without payment to another is arbitrary and against Article 14 and 16 of the Constitution of India. Discrimination on the basis of 'area of residence' is against Article 14 & 16 of the Constitution of India.
(viii) Petitioner had not been paid OPD services, as such, he is entitled to Medical allowance till he opts and provided OPD services."
4. However, the learned counsel of the respondents opposed the OA as well as the above arguments of the applicant and submitted that the applicant had suppressed and concealed many relevant facts which goes down to the root of the matter and prayed for the dismissal of the OA on this ground alone. Learned counsel stated that the CGHS has provided the facility to the Central Government pensioners that they can get the CGHS pensioner card issued immediately after retirement but still if they do not get the CGHS pensioner card issued at that time then it is their own decision and in the meantime, if the contribution rates are revised by the Ministry of Health and Family Welfare, then they have to deposit the contribution for the CGHS pensioner card as per the rates applicable at that time. Therefore, the applicant also should have deposited the contribution as per the rates applicable for obtaining the CGHS pensioner Card.
7 OA No.1345/2017Item 44 (C-4)
5. Learned counsel of the respondents relied on the Office Memorandum issued by the Ministry of Health and Family Welfare dated 29.09.2016 on the subject - Reimbursement of medical claims to pensioners under CS(MA) Rules, 1944 as directed by various CATs/Courts - Reg. For more clarity, the same is reproduced below :-
"The undersigned is directed to state that various references are being received in Ministry of Health and Family Welfare on the above mentioned subject. It is hereby clarified that CS (MA) Rules, 1944 are not applicable to pensioners till date.
2. It is further informed that the following options to avail medical facilities are available to Central Government pensioners:
a) Pensioners residing in CGHS covered areas :
1) They can get themselves registered in CGHS dispensary after making requisite contribution and can avail both OPD and IPD facilities.
2) Pensioners residing in CGHS areas cannot opt out of CGHS and avail any other medical facility (l.e. Fixed Medical Allowance). Such pensioners, if they do not choose to avail CGHS facility by depositing the required contributions, cannot be granted Fixed Medical allowance in lieu of CGHS.
b) Pensioners residing in non-CGHS areas:
1) They can avall Fixed Medical Allowance (FMA) @ Rs.500/- per month.
2) They can also avail benefits of CGHS (OPD and IPD) by registering themselves in the nearest CGHS city after making the required subscription.8 OA No.1345/2017
Item 44 (C-4)
3) They also have the option to avall FMA, for OPD treatment and CGHS for IPD treatments after making the required subscriptions as per CGHS guidelines.
3. In view of the above, reimbursement of medical claims to pensioners under CS (MA) Rules, 1944 as directed by various CATs/Courts, need not be referred to the Ministry of Health and Family Welfare. The respective Administrative Department/Ministry may take their own decision in this regard.
4 further, all Departments/Ministries are requested to Intimate their employees proceeding for retirement regarding the above options for medical facilities available to the Central Government pensioners.
5. This issues with the approval of competent authority." He further relied on another Office Memorandum dated 09.01.2017, on the subject - Revision of rates of subscription under Central Government Health Scheme due to revision of pay and allowances of Central Government employees and revision of pension/family pension on account of Implementation of recommendations of the Seventh Central Pay Commission, the excerpts of which are reproduced below :-
"The undersigned is directed to refer to this Ministry's OM No. S.11011/2/2008-CGHS(P) dated 20th May, 2009 vide which orders were issued revising the rates of monthly subscription for availing CGHS facility, as also the entitlement for free diet, entitlement of accommodation In private empanelled hospitals under CGHS, etc.
2. Consequent upon revision of pay on the basis of the implementation of the recommendations of the 7th Central Pay Commission, it has been decided to revise the rates of subscriptions, to be made by employees / pensioners, for availing benefits under the CGHS, with effect from 1"
January, 2017. It has also been decided to revise the 9 OA No.1345/2017 Item 44 (C-4) monetary ceiling limits for various entitlements of the beneficiaries for availing CGHS facilities.
3. In supersession of all earlier instructions, the following revisions are being made, in so far as it relates to the facilities mentioned below:
(A) Monthly Contributions for availing CGHS facility:
Sl. No. Corresponding levels in the Pay Contribution Matrix as per 7th CPC (Rs. Per month) 1. Level : 1 to 5 250 2. Level : 6 450 3. Level : 7 to 11 650
4. Level :12 and above 1000
4. It is clarified that the reference to pay in this order relates to the pay drawn in the level of pay.
5. Pensioners have an option to get their CGHS pensioner card made by either making CGHS contribution on an annual basis (twelve months) or by making contribution for 10 (ten) years (120 (one hundred and twenty) months) for getting a pensioner CGHS card with life-time validity. It is clarified that:
(i) Contribution to be made by pensioners / family pensioners would be the amount that they were subscribing at the time of their retirement or at the time of death of the Government servant;
(ii) Pensioner beneficiaries, who have already obtained CGHS card with life time validity by paying a lump sum amount equivalent to 10 years' contribution, will not be required to pay any additional amount as a result of the revision in the rates of contribution for availing CGHS facility;
(iii) Entitlement of pensioners / family pensioners, who have already deposited their contribution for life time CGHS facility, will not be changed.
(iv) Pensioners / family pensioners who are contributing to the CGHS on an annual basis and wish to continue to avail CGHS benefits will have to contribute at the revised rates up to the time of contribution needed to cover a period of a total of ten years from the time pensioner CGHS card was issued for the first time to them. The revised rate 10 OA No.1345/2017 Item 44 (C-4) of contribution for the remaining period would be with reference to the level of pay that he / she would have drawn in the post held by him/her (at the time of his / her retirement / death) had he / she continued to be in service now but for his / her retirement/death; and
v) Any pensioner / family pensioner who is entitled to avail CGHS facility has not so far got his/her pensioner CGHS card made, the rate of contribution in such cases will be with reference to the level of pay that he/she would have drawn in the post held by him/her (at the time of his/her retirement / death) had he / she continued to be in service now but for his/her retirement/death.
6. This issues with the concurrence of the Department of Expenditure vide their I.D. Note No. 18(1)/EV/2016, dated 24/11/2016."
6. Heard both sides and examined the documents on record. Keeping in view the arguments advanced by both the parties, we are of the considered opinion that the speaking order passed by the Additional Director, CGHS Head Quarter, in compliance with the directions passed by this Tribunal in MA No. 3590/2022 vide Daily Order dated 20.09.2019 is a well reasoned, rational and clearly a self explanatory order directing the applicant to deposit the fees for the CGHS Card which inter alia reads as under :-
"Subject: Speaking Order in compliance with the directions of Hon'ble Central Administrative Tribunal, New Delhi in MA No. 3590/2022 in OA No. 1345/2017 in the case of Subhash Chander Vs U.O.I. & Ors.
With reference to the above subject the undersigned is directed to refer to the Daily Order dated 20th September, 2019 of Hon'ble Central Administrative Tribunal, New Delhi 11 OA No.1345/2017 Item 44 (C-4) in MA No. 3590/2022 in OA No. 1345/2017 in the case of Subhash Chander Vs U.O.I. & Ors. with a direction to the respondents to reconsider the representation dated 06.03.2017 of the applicant (Sh. Subhash Chander) and keeping in view Para 5(i) of OM No. S.11011/11/2016- CGHS(P)/EHS dated 09.01.2017 pass a detailed reasoned and speaking order afresh.
In compliance of the directions of Hon'ble Central Administrative Tribunal, New Delhi, the representation of the applicant (Sh. Subhash Chander) has been reconsidered and as per Para 5(v) of OM No. S.11011/11/2016- CGHS(P)/EHS dated 09.01.2017, "Any pensioner/family pensioner who is entitled to avail CGHS facility has not so far got his/her pensioner CGHS card made, the rate of contribution in such cases will be with reference to the level of pay that he/she would have drawn in post held by him/her (at the time of his/her retirement/death) had he/she continued to be in service now but for his/her retirement/death".
Hence, as on date, the beneficiaries retired before 01.02.2017 have to deposit the CGHS contribution as per the prevailing rates for CGHS pensioner card."
7. As per the Office Memorandum dated 09.01.2017, the rates have been revised from Rs.325/- per month to Rs.650/- per month with effect from 01.01.2017 and to get the CGHS Card with lifetime validity, a pensioner has to make contribution for 10 years (120 months) at the rate of Rs.650/- per month which comes to Rs.78,000/-(Rs.650 x 12 months x 10 years). Subsequent to the OM dated 09.01.2017 another OM of even No. dated 13.01.2017 was issued which inter alia reads as follows :-
"Those employees superannuating on or before 31/1/2017 and had submitted their application on or before 31/1/2017 may be allowed the subscription at the prevalent rates 12 OA No.1345/2017 Item 44 (C-4) applicable as on 31/1/2017 vide OM no. 5.110111/2/2008- CGHS (P) dated 20/5/2009. Pensioners applying for CGHS pensioner card on annual/lifetime basis after 31/1/2017 will have to pay as per the revised rates effective from 1/2/2017 vide OM of even no. dated 13/1/2017'."
In the light of the above clear order, the applicant hereby is directed to pay Rs.78,000/- and get his lifelong CGHS card. The ratio given in the Judgment of Hon'ble Supreme Court in UOI and others vs. Mahendra Singh 2022 SCC Online SC 909 which reiterates the settled principle in law "by Privy Council in the Nazir Ahmed vs. King Emperor, wherein it was held that "that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden." gives more force to this.
8. We have observed that the applicant retired on 30.04.2016 and then settled down in a non CGHS area where he is entitled to fixed medical allowance of Rs.500/- per month as per DoPT's OM No. 4/25/2008-P&PW(D) dated 19.11.2014 which reads as follows :-
"The undersigned is directed to say that at present Fixed Medical Allowance is granted to the Central Government pensioners/family pensioners residing in areas not covered under Central Government Health Scheme administered by the Ministry of Health & Family Welfare and corresponding health schemes administered by other Ministries/Departments for their retired employees for 13 OA No.1345/2017 Item 44 (C-4) meeting expenditure on their day-to-day medical expenses that do not require hospitalization Orders were issued vide this Department's O.M. of even no, dated 26.05.2010 for enhancement of the amount of Fixed Medical Allowance from Rs. 100/- to Rs. 300/-p.m we.f. 1.09.2008
2. The demand for further enhancement of FMA has been under consideration of the Government for some time past. Sanction of the President is hereby conveyed for enhancement of the amount of Fixed Medical Allowance from Rs 300/- to Rs.500)-per month. The other conditions for grant of Fixed Medical Allowance shall continue to be as contained in this Departments OMs No.45/57/97-P&PW(C) dated 19.12.97. 24.8.98, 30.12.98 and 18.8.99.
3. These orders will take effect from date of issue of this OM
4. These orders are issued with the concurrence of the Ministry of Finance (Deptt. of Expenditure) vide their I.D. Note No 588/F.V/2014 dated 22.10.2014 and in consultation with the Comptroller and Auditor General of India vide their UO No. 174 Staff (Rules)/02-2011 dated 12. 11 2014."
9. Accordingly, in light of the above OM, the respondents are directed to pay to the applicant a fixed medical allowance at the rate of Rs.500/- per month from 01.05.2016 till the present date when the applicant pays Rs.78,000/- as a lump sum amount for the lifetime CGHS card. This exercise shall be carried out by the respondents within a period of two months from the date of receipt of a certified copy of this order. However, on ground of equity, the respondents may consider adjusting the arrears of fixed medical allowance payable to the applicant from the amount of Rs.78,000/- to be paid by the 14 OA No.1345/2017 Item 44 (C-4) applicant for the life long CGHS Card so that his financial burden is reduced.
10. With the above direction, the OA is disposed of. There shall be no order as to costs.
Pending M.A if any also stands disposed of accordingly.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi)
Member (A) Member (J)
/Mbt/