Andhra HC (Pre-Telangana)
Government Of A.P., Rep. By Its Chief ... vs K.A. Ansari, I.A.S., Retd. Vice ... on 3 October, 1996
Equivalent citations: 1997(1)ALT359
Author: V. Rajagopal Reddy
Bench: V. Rajagopal Reddy
JUDGMENT P.S. Mishra, J.
1. This appeal under Clause 15 of the Letters Patent of the Court is preferred against the judgment in Writ Petition No. 28743 of 1995 dated 7-8-1996 in a proceeding Under Article 226 of the Constitution of India.
2. Factual matrix, which is not in dispute, is fully set out by the learned single Judge in the impugned judgment and for brevity we take out only such facts which for the purposes of the appeal appear to us to be relevant. The petitioner was the Administrative Member of the Andhra Pradesh Administrative Tribunal constituted Under Section 4(2) of the Administrative Tribunals Act, 1985 and in due course was appointed Vice-Chairman with effect from 11-11-1991. While he was in office as the Vice-Chairman of the Tribunal, his wife suffered Cardiac problem and she was admitted in the I.C.C.U. of Osmania General Hospital on 18-5-1995 under the care of Dr. Sudheer Naik. The patient, however, on medical advice was shifted to Mediciti Hospital, (a private corporate hospital) where the disease was diagnosed as Multiple Coronary Artery disease. After the patient was admitted to Mediciti Hospital, the petitioner requested the Government to allow him to get his wife treated at Mediciti Hospital and also for sanction of medical advance for her treatment. The Government, however, released a sum of Rs. 40,000/- as advance and permitted the treatment of the patient at Mediciti Hospital, vide G.O.Rt. No. 2675 GA (SPF) B. Department dated 27-5-1995. The patient, however, was shifted to Escorts Heart Institute and Research Centre, New Delhi and the petitioner requested the Government to accord sanction for getting the patient treated in the said hospital and also for reimbursement of Rs. 2,32,942/- after deducting Rs. 17,347/-, which remained unspent out of the medical advance of Rs. 40,000/- released by the Government on 27-5-1995. The Government accorded permission to the petitioner to get the patient treated at Escorts Heart Institute and Research Centre, New Delhi in Letter No. 210/SPF.B/95-l dated 14-6-1995 and advised that he could prefer the detailed medical bills to the Government for reimbursement after completion of the treatment as well as for any post operational treatment at the hospital. The petitioner was allowed to utilise the balance amount of Rs. 17,347/-, which remained unspent from out of the medical advance of Rs. 40,000/- already released. The petitioner accordingly sought reimbursement of the amount spent by him for the treatment of the patient duly enclosing the medical bills issued by the Escorts Hospital. The Government, however, ultimately issued orders in G.O.Rt.No. 5130 GA (SPF) B. Department dated 31-10-1995 releasing another sum of Rs. 40,000/- i.e., in all Rs. 80,000/- by stating that the said amount is being released in relaxation of the orders issued in G.O.Ms. No. 368 GA (Elections) A. Department dated 5-7-1986 and rejected the rest of the claim of the petitioner. The petitioner requested the Government to review that decision by bringing to their notice the legal position. But when the Government did not move in the matter, he filed the writ petition.
3. Learned single Judge has adverted to the legal position in some details and finally opined that the petitioner is entitled for full reimbursement of the medical expenses incurred by him in getting his wife treated at Escorts Hospital including fare for air passage for the patient and the personal attendant. The Government has preferred the instant appeal.
4. It is not in dispute, before us, that the service conditions applicable to all serving High Court Judges, including medical allowance, are applicable to the Vice-Chairman of the Andhra Pradesh Administrative Tribunal. Section 10 of the Administrative Tribunals Act, 1985 provides that -
"The salaries and allowances payable to and the other terms and conditions of service (including pension, gratuity and other retirement benefits) of, the Chairman, Vice-Chairman and other Members shall be such as may be prescribed by the Central Government:
Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairman, Vice-Chairman or other members shall be varied to his disadvantage after his appointment."
Once the. Central Government has treated the conditions of service of the Chairman and Vice-Chairman of the Administrative Tribunals on par with those of the serving Judges of the High Court, the said conditions have to be continued. It is to be seen that when the Central Government is alone competent to decide about the salary and allowances payable to and the other terms and conditions of service, including pension, gratuity and other retirement benefits of the Chairman, Vice-Chairman and other Members of the Tribunal, the State Government is not competent to vary the conditions of service.
5. A Bench of the Madras High Court in S.T. Ramalingam v. State of Tamil Nadu, has considered the provisions of the High Court Judges (Conditions of Service) Rules (1956) (as amended in 1986), Tamil Nadu Medical Attendance Rules, All India Services (Medical Attendance) Rules (1954) and other provisions in this behalf and noted various provisions of the Constitution to record, in the case of a sitting Judge of the High Court, the development in law on the subject to finally hold as follows:
"We have no reason to think that the administration of the State of Tamil Nadu has been unaware of the status which the Judges in this Court enjoyed before the days of the Constitution and the attempts of the Constitution makers to secure a constitutional and independent status for the Judges of the High Court. The High Court to-day is a creation of and functions under the Constitution and is constituted of a Chief Justice and the Judges, and it will be indeed harsh to suggest that the executive Government of the State is not aware of the High Court's constitutional independence in the administration of justice like the independence of the legislature in its field. A Full Bench of the Allahabad High Court in High Court of Judicature at Allahabad v. Amod Kumar Srivastava 1993 All. L.J. 525 has only reiterated what has always been recognised by all concerned that the dispensation of justice by the High Court is its constitutional function and is termed as regal or sovereign power. It exercises primary and unalineable function of the State, which cannot be left for any other person. In a recent Bench decision, the Allahabad High Court in Red Light on the Cars of the Hon'ble Judges of the High Court v. State to which we shall refer again later has expressed in another context, but we find suitable to express our view in agreement thereof that a Judge of a High Court who is a person appointed Under Article 217 of the Constitution by the President of India and functions under the Constitution is a person of distinction holding a high office of dignity and honour and the word "Hon'ble" is always prefixed before his name. The Rules which are subordinate legislation cannot determine the status of constitutional appointees and functionaries and a subordinate legislation also cannot be interpreted in a manner relegating the status and dignity of constitutional appointees and functionaries by saying that they in spite of being high dignitaries are not so high dignitaries. Can those who have to implement a statute take to themselves the authority to decide what should be given to X and what should be given to Y, if both X and Y are by law made equals? It is this aspect of the case that must receive answer. A proper answer to this can be had by finding out whether the Government of the State has treated the Cabinet Ministers and Judges as equals in the matter of reimbursement of the medical bills or have applied two standards.
We have already referred to the relevant provisions and found that in respect of the conditions of service of a Judge of a High Court, for which no express provision has been made in the Act or under the Rules framed there under, the rules for the time being applicable to a member of the Indian Administrative Service holding the rank of a Secretary to the Government of the State in which the principal seat of the High Court is situated apply. In respect, however, of the facilities for medical treatment and accommodation in hospitals, the All India Services (Medical Attendance) Rules, 1954 applied with effect from 26-1-1950, but after the amendment aforementioned in the case of Judges of the High Courts other than the Delhi High Court and the Punjab and Haryana High Court, the rules and provisions as applicable to a Cabinet Minister of the State Government in which the principal seat of the High Court is situated, have been made applicable and in the case of the Chief justice of the Delhi High Court and the Punjab and Haryana High Court, the rules and provisions as applicable to a Cabinet Minister of the Union Government have been made applicable and to the Judges of these Courts, the rules and provisions as applicable to a Union Deputy Minister have been made applicable. The amendment has clearly indicated that the Judges are required to be treated not on par with persons, who are governed by All India Service (Medical Attendance) Rules after 4-11-1986, but on par with the Cabinet Ministers of the Government of the State. The rule before amendment had already given to the Judges of the High Court benefits or facilities for medical treatment and accommodation in hospitals under the provisions of the All India (Medical Attendance) Rules, 1954. In Tamil Nadu, however, under the Tamil Nadu Payment of Salaries Act, 1951 as regards the salary and other allowances of Ministers, rules are framed, which say that a Minister, the Speaker, the Deputy Speaker or the Parliamentary Secretary shall for himself and for the members of his family be entitled to free of charge accommodation in hospitals maintained by the State Government and also to medical treatment and attendance, on the same terms and conditions as are applicable to the highest category of servants employed under the Government of Tamil Nadu. The rule is silent about any treatment to the Minister, the Speaker or the Deputy Speaker or the Parliamentary Secretary for himself and the members of his family in any hospital other than the hospitals maintained by the State Government, but as to medical treatment and attendance, it has provided that they shall be given medical treatment and attendance on the same terms and conditions as are applicable to the highest category of servants employed under the Government of Tamil Nadu. It is conceded before us and it is not in doubt that the expression "highest category of servants employed under the Government of Tamil Nadu", has been understood by the respondents to mean cadre of officers, who are governed by the All India Service Medical Attendance Rules, 1954. It cannot be disputed as we have observed earlier that the State Legislature has got the competency to enact the law as to the salaries and allowances of Ministers, the Speaker and the Deputy Speaker, Parliamentary Secretary, etc. The Parliament alone, however, is competent as we have already noticed, to create one or more All India Services including All India Judicial Service common to the Union and the States and make provisions by law as to the conditions of service of such persons. The Judges of the High Court as constitutional authorities stand apart by specific provisions in this behalf in the Constitution and the Parliament alone by or under a law is empowered to determine what allowances and other service conditions for them should be made. On a strict interpretation of these provisions, it is possible to hold that the Ministers, Speaker, etc. of the State Government, who are subjected to the Medical Attendance Rules framed under the Tamil Nadu Payment of Salaries Act, are not entitled to the medical treatment and attendance on the same terms and conditions as are applicable to the members of the All India Services and they, that is to say, the Ministers, etc., are entitled only to the terms and conditions as are applicable to the services employed under the Government of the State of Tamil Nadu that is to say, the members of the highest category of a service of the State of Tamil Nadu. It will not be possible even by stretching the provisions as in the Constitution of India and the laws made by Parliament to equate a holder of a post in All India Service with that of a holder of a post in All India Service with that of a holder of a post in a State Service except by a statute creating such equality and/or by such provisions which are intended to be made applicable to the members of All India Services as well as the members of the State Government Services. The Tamil Nadu Medical Attendance Rules are intended to apply to the persons, who are entitled to the facilities and the benefits under the All India Service (Medical Attendance) Rules as well only to the extent to which they are not inconsistent with the Rules thereunder. Since the Tamil Nadu Medical Attendance Rules are applicable to the Government Servant employed in the Government of Tamil Nadu that is to say, the whole time Government Servants belonging to Groups A and B, who appear to be the highest ranking Government Servants in the State and under the Tamil Nadu Legislative Assembly (Medical Attendance and Treatment) Rules, 1964 applicable to the Ministers, they have been given the same facilities as are given to the highest category of servants employed under the Government, they (Ministers and others) are governed by these Rules. When these Rules thus permitted only treatment in the Government Hospitals and accommodation in the Government Hospitals free of charge and the amendment, the sheet anchor of the defence that is G.O.Ms. No. 1023, Health and Family Welfare Department, dated 17-6-1980 in Rule10(c) of the Tamil Nadu Medical Attendance Rules restricted any allowance by way of reimbursement of the charges incurred for treatment undergone by a person in a private medical institution to the extent that would have been incurred, had the patient taken treatment in a Government Hospital excepting diet charges, no Minister, Speaker or any other person who is governed by the Tamil Nadu Medical Attendance Rules and the Tamil Nadu Legislative Assembly (Medical Attendance and Treatment) Rules, 1964, could get anything beyond the limit prescribed under these Rules except by a violation thereof and by extending the eligibility of such persons under the All India Service (Medical Attendance) Rules, 1954. We have no hesitation thus in holding that in the case of Judges of this Court, who are governed by their own service condition Rules, who notwithstanding the question by amendment Act of 1986 for the purposes of the benefits and facilities of medical treatment with the Cabinet Ministers of the State, for the reason that the State Legislature has equated a Minister, the Speaker, the Deputy Speaker or the Parliamentary Secretary and the members of his/or her family for the accommodation in hospital and medical treatment and attendance with the highest category of servants employed under the Government of Tamil Nadu, can be subjected to the Rules that are applied to the servants employed under the Government of Tamil Nadu. Any attempt to do so shall be a violation of the guarantee Under Article 221 (2) of the Constitution of India. The framers of the Tamil Nadu Medical Attendance Rules, however, were aware that members of All India Service cannot be subjected to any such provision in these Rules if they are inconsistent with any rules in the All India Services (Medical Attendance) Rules, 1954. They, for the said reason, kept themselves pronounced in the statute itself that these Rules shall apply to persons/ who are entitled to medical attendance under the All India Services (Medical Attendance) Rules, 1954 only to the extent to which they are not inconsistent with these Rules. It is indeed pathetic, if not abnoxious how the respondents decided to enforce the Rule in G.O.Ms. No. 1023, Health & Family Welfare Department, dated 17-6-1980 in the case of a Hon'ble Judge of the High Court.
Learned Advocate General as well as learned Additional Government Pleader, have brought to our notice certain files relating to the medical reimbursement bills of Ministers of the State, All India Service Officers and the Hon'ble Judges of this Court. In the case of the latter two, who, in our opinion, cannot be subjected to a rule, which is inconsistent with All India Services (Medical Attendance) Rules, 1954 (inconsistency we shall demonstrate a little later), reimbursement for treatment in private medical institutions have been confined to the rule in G.O.Ms. No. 1023, Health & Family Welfare Department, dated 17-6-1980. In the case of the former, that is to say, the Ministers of the State, who, in our opinion, are subject to Tamil Nadu Medical Attendance Rules and, therefore, this G.O.Ms. No. 1023, Health and Family Welfare Department, dated 17th June, 1980 has not been applied.
Learned Advocate General as well as Additional Government Pleader have not been able to bring to our notice even one medical reimbursement file of a Minister of the Government of the State in which the payment for treatment in a private hospital has been limited to the rules in G.O.Ms. No. 1023, Health and Family Welfare Department dated 17-6-1980. The three files (vide File No. G.O.Rt. 3141, Public (P 5B) dated 5-10-1990, G.CMs. No. 539, P.S.B. dated 7-5-1992,1384 dated 4-12-1992 and G.O. (D) 76, P.S.B. dated 22-3-993) dealing with the medical reimbursement for treatment in a private hospital of the Ministers of the State show that in one case for a bill underRule2 and 6 of the Tamil Nadu Legislative Assembly (Medical Attendance and Treatment) Rules, 1964 for a sum of Rs. 46,841/- for treatment in a private hospital at Madras in August and September, 1990, Rule14(ii) of the All India Services (Medical Attendance) Rules, 1954 was invoked, but not the Rule in G.O.Ms. No. 1023, Health and Family Welfare Department, dated 17-6-1980 and the bill was settled in full by the State Government.
Other two bills are cases where it is difficult to find any Government orders of sanctioning reimbursement of the bills of the Ministers treatment and accommodation in a private hospital. They are said to have claimed advances for treatment abroad and as demanded by them, money has been paid and it is said, on return and after the treatment as claimed by them, they have reimbursed/refunded the excess taken by them in advance. No one seems to have been ever aware either of the requirements of the Tamil Nadu Medical Attendance Rules or even the requirements of All India Services (Medical Attendance) Rules. There are no orders anywhere in any of these two files to show that at any level of the Government, there has ever been any application of any of the Rules including the Rule as in G.O.Ms. No. 1023, Health & Family Welfare Department, dated 17-6-1980. We have known that a person, who makes the law is obliged to abide by it and the famous saying is that the law is above one who makes it. The Tamil Nadu Legislature has made the Tamil Nadu Payment of Salaries Act and the Government of Tamil Nadu, obviously representing the Council of Ministers has framed the Tamil Nadu Legislative Assembly (Medical Attendance and Treatment) Rules. They have put the Ministers, the Speaker, the Deputy Speaker and the Parliamentary Secretary on the same terms and conditions as are applicable to the highest category of servants employed in the Government of Tamil Nadu. They have framed the Tamil Nadu Medical Attendance Rules. They have amended the said Rules by G.O.Ms. No. 1023, Health and Family Welfare Department, dated 17-6-1980. But they have always been, it seems, above the law, which they themselves have framed in this behalf.
We postponed the demonstration of the inconsistency of the provisions in the Tamil Nadu Medical Attendance Rules and in particular in G.O.Ms. No. 1023, Health & Family Welfare Department, dated 17-6-1980 which we may now take up. The All India Services (Medical Attendance) Rules, 1954 applied to the Judges of the High Courts before the amendment in the High Court Judges (Conditions of Service) Rules in 1986, and which we are inclined to assume, will continue to apply for the reason that the rules framed under the Tamil Nadu Payment of Salaries Act, 1951 for the medical attendance bills of the Ministers and others, if applied to them, appear to deny what they must legitimately get in terms of the said Rules. Application of the rules that reduce the allowance already granted to the Judges is not permissible Under Article 221(2) of the Constitution of India. These Rules framed by the State Legislature are to be applied to members of the services serving in connection with the affairs of the State. They cannot, for the reason of the constitution of the All India Services and the service conditions determined by the All India Services Act, 1951 apply to the members of All India Services. The rules that are framed by the Central Government under the said Act prescribed for the appointment of the Authorised Medical Attendant, who, the Rules stipulate, has to be a principal Medical Officer appointed by the Government to attend their medical needs in the station or district where they are working. A Medical Officer, who in rank is equal or immediately junior to such principal Medical Officer and who is attached to any hospital or dispensary in the station where such principal Medical Officer is posted, is also made competent to attend to their medical needs, if there is no principal Medical Officer appointed by the Government for the station at which or the district in which the member of the service is posted. There is a proviso which stipulates that the principal Medical Officer shall be the Officer appointed by the Government as the-Authorised Medical Attendant. The Authorised Medical Attendant under these Rules is competent to take decision whether the case of a patient is of such a serious or special nature as to require medical attendance by some person other than himself. In such a situation, he is required to obtain before hand, the approval of the Chief Administrative Medical Officer of the State, except the case where the delay involved would entail danger to the health of the patient. In that case, with the prior approval of the Chief Administrative Officer or in the case of an emergency, the Authorised Medical Attendant without the approval of the Chief Administrative Officer may send the patient to the nearest specialist or any other medical officer by whom, in his opinion, medical attendance is required for the patient or if the patient is too ill to travel, summon such specialist or other medical officer to attend upon the patient. Where a patient is sent to a specialist or other medical officer, he shall, on production of a certificate in writing by the Authorised Medical Attendant in this behalf be entitled to travelling allowance for the journey to and from the headquarters of the specialist or other medical officer. These Rules, have undergone several interpretations and clarifications by the Central Government (the Rules themselves stipulate, the power to interpret in the Central Government). The Central Government as far back as 17th July, 1964, clarified that if the Authorised Medical Attendant is of the opinion that suitable facilities for hospital without risk of deterioration in his health, he may give treatment to the member of the Service or the member of his family at his residence. In cases where illness is not severe or the disease is of a chronic nature, the patient should consult the Authorised Medical Attendant, either at his consulting room, if it has been so maintained or in the hospital as an out-door patient, and further that ordinarily a member of the service is expected to receive treatment from the Authorised Medical Attendant, but in exceptional circumstances, reimbursement of the cost of medical treatment incurred on the advice of the private practitioner can be reimbursed by the State Government, if the State Government are satisfied of the existence of special circumstances in which treatment could not be had through the Authorised Medical Attendant and the refusal to reimbursement of such cost, is likely to cause undue hardship to the officer. This power is available in Rule14, which says, "Nothing in these rules shall be deemed to -
(i) entitle a member of the service to reimbursement of any cost incurred in respect of medical services obtained by him, or to travelling allowance for any journey performed by him otherwise than as expressly provided in these rules, or (i-a) entitle a member of the service to reimbursement of any cost incurred in respect of:-
(a) such preparations which are not medicines but are primarily used as food, tonic, toilet or disinfectant, and
(b) such expensive drugs, tonics laxatives and other elegant and proprietary preparations (for which drugs or equal therapeutic value are available) as may be notified by the Central Government;
(ii) prevent the Government from granting to a member of the service, or to a member of the family of a member of the Service any concession relating to medical treatment or attendance or travelling allowance for any journey performed by him which is not authorised by these rules."
The above rule with the clarification alone will guide the Government in deciding whether the claim of a member of any All India Services should be granted. It is trite law that no person vested with a discretion under a law can act at his whim and use his fiat in deciding, who should be benefitted by the exercise of discretion and who should not be. The clarification has put forward two requirements. The two requirements are (1) satisfaction that the treatment could not be had through the Authorised Medical Attendant and (2) refusal to reimbursement is likely to cause undue hardship to the officer.
There is no limit prescribed for the amount up to which the controlling officer can allow re-imbursement, but in a case falling Under Rule 14(ii) above, sanction of the Government will be necessary. To clarify, however, that the 'Government' for the purpose of the rule, should not always be the 'Government of India', excepting cases where any clarification is required, the Government of India has said in a letter dated 10th August, 1964 (G.I. MHA, letter No. 7/10/63-AIS (III) (G.I.MHA, letter No. 7/2/ 65-AIS (III) dated 20th April, 1965) that the State Government are the competent authority to regulate such procedural matters and the State Government are themselves competent to grant to an All India Service Officer serving in connection with the affairs of the State any concession relating to medical attendance or treatment which is not authorised under the Rules.
We have seen thus that the Rules put no limit upon the discretion of the competent authority to regulate and prescribe no procedure how such reimbursement should be claimed and what should be found satisfied before the reimbursement is ordered in cases not covered by the Rules. We have also seen that a role is envisaged under the Rules for the Authorised Medical Attendant and the Government of the State, is competent to notify who the Authorised Medical Attendant will be for any station or district.
In the proviso to the definition of an "authorised medical attendant", the rule, however, has called, in the absence of no principal Medical Officer appointed by the Government for a particular station, the principal Medical Officer appointed for the district in which the station or district is situated, as the Authorised Medical Attendant. These rules, however, do not recognise the role of any other authority in the Government except the authority that is envisaged for the officers superior in rank to the Authorised Medical Attendant. The Government of the State is given a role in sanctioning or authorising the reimbursement of the expenses incurred for the accommodation, treatment and travelling when found necessary as required by the ailment for which treatment is sought. A vital role is conceded, however, for the State Government to play in granting to a person to whom the Rules apply, any concession relating to medical treatment or attendance or travelling allowance. We have gone in some details into the Rules only to find for ourselves whether the legislative intention in amendment in particular the rule as regards reimbursement of medical charges was/is to give to the Hon'ble Judges of this Court something more than the All India Services (Medical Attendance) Rules, 1954, had /has given. We have noticed that before the amendment, the Hon'ble Judges of this Court enjoyed all facilities of medical treatment and accommodation in hospital in accordance with the All India Services (Medical Attendance) Rules, 1954. This equation, the framer of the Rules, intended to change and thus came G.S.R No. 1175 (E) dated November 4,1986 saying, "in respect of facilities for medical treatment and accommodation in hospitals - in the case of Judges of the High Courts other than Delhi and Punjab & Haryana High Courts, the rules and provisions as applicable to a Cabinet Minister of the State Government in which the Principal seat of the High Court is situated shall apply."
We have also seen that a set of rules have been in existence in Tamil Nadu, which were/are framed under the Tamil Nadu Payment of Salaries Act (XX of 1951), which contain a prescription that the Ministers and members of their family would/will be entitled to accommodation free of charge in hospitals maintained by the State Government and also to medical treatment and attendance in the same terms and conditions as are applicable to the highest category of servants employed under the Government of Tamil Nadu. It obviously cannot be conceived that the notification dated 4-11-1986 amending the High Court Judges (Conditions of Service) Rules, intended in any manner to bring down the scale of the medical facilities which the Hon'ble Judges of this Court were already enjoying. The amendment had/has not the obvious intendment of improving the facilities for medical treatment and accommodation in hospital and to give to the Hon'ble Judges of the High Court something better and more than the provisions of the All India Services (Medical Attendance) Rules, 1954 had/has given to them. The rule makers could obviously not entertain any idea of reducing the facilities for medical treatment and accommodation in hospital to the Judges for, any such thing, we have already found, would/will be in the teeth of Article 221 (1) of the Constitution of India.
There is a significant use of the word 'provision' in the expression "the rules and provision" as applicable to a Cabinet Minister of the State Government in the notification G.S.R. 1175 (E) dated 4-11-1986. The Oxford Dictionary defines the word 'provision' to mean, "providing; provided amount of something; supply of good, eatables & drunkable legal or formal statement providing for something, clause of this, appointment to benefice not yet vacant; ordinances for checking king's misrule drawn up by barons under Simon de Montfort in 1258; to supply with."
If the intention was/is to give to the Judges of the High Court only that much which is prescribed by the rules framed by the State Legislature for Cabinet Ministers, the word "provisions" was/is not necessary. We have been assisted by the learned Advocate General and the learned Additional Government Pleader, in order to get full information as to whether in the case of Minister, the rules framed under Act XX of 1951 were ever applied. When questions how reimbursements were made to the Cabinet Ministers came up for discussion in the course of the hearing of the case it is found that at no time these Rules were ever extended to them. The learned Additional Government Pleader has made a reference to a rule in the Tamil Nadu Financial Code, for making grants and concessions at the Government's discretion and contended that the Government have used only this power in the case of the Ministers. We need not pursue our enquiry into this aspect any further for, it is almost conceded that the Cabinet Ministers have enjoyed everything and have always been treated above the rules which they have framed for themselves. If the executive has not subjected the Cabinet Ministers to the inhibitions under the Rules, how can they put the Judges of the High Court under such rules? The High Court Judges (Conditions of Service) Rules after amendment have extended to the High Court Judges all facilities for medical treatment and accommodation in hospital which are given to the Cabinet Ministers. It is hardly pertinent for the Government to subject the medical reimbursement bills of the Hon'ble Judges of this Court to such set of rules, which they could never apply to the Ministers."
6. The discussion extracted from the Judgment of the Madras High Court, as above, fully endorses the view taken by the learned single Judge that in case Ministers are given a higher rate of medical allowance, the Judges, if they were getting less, would draw equal to the Ministers and if Ministers are given less than the allowances which Judges were drawing from before either under All India Services (Medical Attendance) Rules, 1954 or otherwise, they would continue to draw at the said rate of allowances and their allowance would remain unaffected by any rate less than that prescribed for the Cabinet Ministers by the Government of the State. The above has been drawn from various provisions pertaining to the conditions of service of the Hon'ble Judges of the High Court and Clause (2) of Article 221 of the Constitution of India. The protection as envisaged under the said constitutional provisions to the salaries and allowances payable to the Judges are extended to the Chairman and Vice-Chairman and other Members of the Administrative Tribunals Under Section 10 of the Administrative Tribunals Act, 1985.
7. Learned Advocate General, however, has drawn our attention to a discussion of the learned single Judge based on certain recordings in the files dealing with the demand of the petitioner-respondent for the medical allowance and reimbursement based on the previous orders of the Government of the State. Learned Single Judge has referred to certain notings of the Minister (Finance) in the files, particularly one dated 12-1-1996 to state as follows:
"From the various notings made by the officers concerned and the noting of the Hon'ble Minister it is evident that while the officers of the respondent Government processed the case of the petitioner on the basis of G.O.Ms. No. 368, dated 5-7-1986 which is clearly inapplicable to the facts and circumstances of the case and opined that these rules have to be relaxed if the entire medical expenses incurred by the petitioner have to be reimbursed, the Hon'ble Minister proceeded on the assumption that there are no rules" for extending free medical attendance to these functionaries, in force. The Hon'ble Minister seemed to have more obsessed with the assertion of the petitioner that if the medical bills are not reimbursed he will be approaching the Court of law. The Hon'ble Minister is also under the impression that he has considered the case of the petitioner on humanitarian considerations, which has no place in a democratic setup where the relationship between the Government and citizens is governed by rule of laws. It is now well settled that any Governmental action should be based on reason and in accordance with law. Any humanitarian considerations should be within the permissible limits of law alone but not otherwise."
and commented in the Judgment as follows:
"It is high time that persons holding office at the decision making level should act dispassionately and take decisions in an objective manner befitting to the position held by them, instead of passing orders on mere obsession. As the petitioner did not commit any sin in putting the Government on notice that if his request is not considered from its proper perspective, he will be left with no option except to approach the Court of law. The Hon'ble Minister (Finance) is not justified in making such an adverse noting against a person who held high office, both in executive and in administration of justice."
8. Observations, as above, in the Judgment of the learned single Judge have emerged mainly from the notings of the Minister, who, evidently, had not informed himself of the correct legal position and it seems, was not able to appreciate the status which is created for the purpose of medical allowance and other allowances for the Chairman, Vice-Chairman and other Members of the Administrative Tribunals. The above, however, cannot be said to have emerged out of any motive or malice or any other kind of animus and because there has been an error of Judgment by a constitutional authority, it cannot be said his actions are actuated by malice or are improper for other reasons though clearly invalid being opposed to law. The observations by the learned single Judge, as above, thus cannot be read as attributing any motive or any impropriety to the Minister (Finance). They apparently are expressed of anguish of a conscious Judge on the lack of perception on the part of the executive in respect of the status of the Vice-Chairman of the State Administrative Tribunal. Courts invariably keep themselves within such bounds of decency which they expect the executives also to exercise. We do not think learned single Judge, not being aware of it, has in any manner outstepped those limits. But if mere is any impression anywhere that the observations are harsh or not warranted or are aimed at any individual Minister, we clarify that the same is not intended. To conclude, we find no merit in the appeal.
The appeal is dismissed.