Central Administrative Tribunal - Delhi
Dr Prem Kumar vs M/O Health And Family Welfare on 29 September, 2022
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Item No. 08 O.A. No. 1111/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 1111/2020
This the 29th day of September, 2022
Hon'ble Mr. Manish Garg, Member (J)
1.Dr. Prem Kumar
S/o Late Gaje Singh
R/o 1469, Sector-A, Pocket-B, Vasant Kunj,
New Delhi-110070
Aged about 70 years
2.Dr. P.S. Jain
S/o Late Shri Phool Singh Jain,
R/o A-1, Swasthya Vihar, Vikas Marg,
Delhi-110092
Aged about 90 years
3.Kishori Lal
S/o Late Shri Narsingh Dass Sehgal,
R/o Flat No. 1192 A, Sector 23 A,
Faridabad, Haryana 121005
Aged about 79 years
4.Lal Singh Yadav
S/o Late Shri Sukh Ram
R/o RZ-673/24, Gali No. 18 A,
Sadh Nagar-II, Palam Colony
New Delhi-110045
Aged about 68 years
5.Ansuya Prasad Baluni
S/o Late R.S. Baluni,
R/o B-12/3, Gali No. 4, Opp. Mangalam Hospital,
West Vinod Nagar,
New Delhi-110092
Aged about 65 years
6.Anil Kumar Ahluwalia
S/o Late Shri Radhey Shyam
R/o 5989/3 Shyam Kutir, B-3, Street No. 1
Dev Nagar, Karol Bagh
New Delhi-110005
Aged about 63 years
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Item No. 08 O.A. No. 1111/2020
7.Vinit Kumar Aggarwal
S/o Late Shri Brij Nath Aggarwal
R/o Plot No. 75 Pocket 11B, Sec. 23
Rohini, Delhi 110086
Aged about 62 years
8.Saroj Bhasin
W/o Mukesh Bhasin
R/o Flat No. 83 Nagin Lake Apartments,
Paschim Vihar, Outer Ring Road,
New Delhi-110087
Aged about 60 years
9.Anuj Kumar
S/o Late Shri Mool Chand
R/o Flat No. D-503 New Jyoti Apartment
Plot No. 27, Sector 4 Dwarka,
New Delhi-110078
Aged about 61 years
10. Ramesh Chand
S/o Shri Teeka Ram
R/o WE-79, Mohan Garden
Near Uttam Nagar,
New Delhi-110059
Aged about 66 years
11. Vinod Kumar Prasad
S/o Sarabjeet Prasad
R/o H. No. 29 A, Street No. 25, Block-D
Molarband Extension,
Badarpur, New Delhi 110044
Aged about 56 years
12. Jagat Ram
S/o Dashrath Dutt
R/o G 234, Gali No. 13,
West Karawal Nagar,
Delhi 110090
Aged about 64 years
13. Yam Prasad
S/o Shri Ravi Lal Sharma,
R/o Flat No. 304, Sai Astha Apartment,
Plot No. 13-14, Shiv Park, Kakrola,
Sector 15, NSIT Dwarka,
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Item No. 08 O.A. No. 1111/2020
New Delhi 110078
Aged about 61 years
(Group A to Group C retirees of MCI)
...Applicants
(By Advocate: Mr Ajesh Luthra)
Versus
1. Union of India
Through its Secretary
Ministry of Health & Family Welfare,
Nirman Bhawan,
Maulana Azad Road, New Delhi
2. The Director (Policy Station),
CGHS, Ministry of Health and Family Welfare
Room No. 244 A,
Nirman Bhawan
Maulana Azad Road, New Delhi
3. The Addln. Director (HQ)
CGHS
3rd Floor, CGHS Wellness Centre Building,
Sector-XII,
R.K. Puram, New Delhi
4. The Additional Secretary & Financial Advisor,
Finance Division (CGHS)
Ministry of Health & Family Welfare
Nirman Bhawan,
Maulana Azad Road, New Delhi
5. National Medical Commission
Through its Secretary,
Dada Dev Mandir Road
Sector-8, Dwarka
New Delhi-110077
(Successor in interest of erstwhile MCI)
...Respondents
(By Advocate : Mr. Ashish Rai for R 1 to 4 and Mr T
Singhdev for R 5)
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Item No. 08 O.A. No. 1111/2020
ORDER (ORAL)
"The prosperity of nation is directly proportionate to health of its people."
This OA has been filed by the applicant seeking the following relief(s):-
"8.(a) Direct the respondents to immediately further consider and extend CGHS facilities to the applicants, forthwith
(b) Accord all consequential benefits.
(c) Award costs of the proceedings.
(d) Any other relief which this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the case."
2. The moot question before this tribunal is inter alia to the fact "Whether erstwhile employees who retired from Medical Council of India (MCI) are to be extended facilities of CGHS to the newly enacted Commission i.e. National Medical Commission (in short NMC)?
3. 1. The CGHS was constituted vide Ministry of Health's OM dated 01.05.1954. In accordance with para 6 of the said Office Memorandum, CGHS facilities are admissible to all the Central Government servants who are paid their salary/pension from the Civil Estimates of the Central Government. Central Government Health Scheme (CGHS) 5 Item No. 08 O.A. No. 1111/2020 is a health scheme for serving / retired Central Government employees and their families. The scheme was started in 1954 in Delhi. The scheme was intended to be only for serving Central Government employees who had difficulty in getting reimbursement on account of OPD medicines (today CGHS dispensaries are giving OPD medicines). The fact that there were not many private hospitals at that point of time was also one of the reasons for starting the scheme. This was not envisaged to be an all India scheme.
3.2. All the employees of the Central Government and also the employees of many of the autonomous/statutory institutions are entitled to CGHS benefits not only during their service period, but also after their retirement from the service. However the employees of a very few autonomous/statutory Institutions are only part beneficiary in the sense that their employees are entitled for CGHS facilities only during their service period and not after their retirement.
3.3. The Medical Council of India is one such Autonomous Institution where the retired employees are not entitled to CGHS facilities after retirement from service. On 10.06.2014, taking a holistic view, Govt. of India 6 Item No. 08 O.A. No. 1111/2020 announced extension of CGHS benefits to the retired employees of such Statutory/Autonomous bodies whose serving employees are already covered under CGHS. However, the said decision is yet to be implemented for the retirees of MCI. It can be seen from records of the case that decision to implement CGHS has been extended to other bodies like Dental Council of India etc. 3.4. It is not disputed fact that in the present case the erstwhile employees of MCI were getting CGHS pension and it is also not disputed that since the existence of MCI and repealing of MCI by virtue of IMC Act even the retired employees were getting extended benefit of CGHS (while in service).
3.5. The present case pertains to the retired employees who retired during the existence of MCI as it was then and thereafter from the period when the NMC came into existence till date.
3.6. It is the case of the applicant that the Executive Committee of Medical Council extended the said benefit on 21st August 2014. Minutes of the Executive Committee Meeting are as under:-
"18. Extension of CGHS facilities to the retired employees of Statutory/Autonomous 7 Item No. 08 O.A. No. 1111/2020 bodies, whose serving employees are already covered under CGHS reg.
Read: the matter with regard to extension of CGHS facilities to the retired employees of Statutory/Autonomous bodies, whose serving employees are already covered under CGHS.
The Executive Committee of the Council perused the proposal extending the CGHS facilities to the retired employees of such Statutory/Autonomous bodies whose serving employees are already covered under CGHS, subject to the following conditions:-
a) CGHS facilities will be extended to the retired employees of the Statutory/Autonomous bodies on cost-to-cost basis. They will be entitled to OPD facilities and medicines from CGHS Wellness Centres in Delhi/NCR only.
b) Medical Expenses incurred on IPD/hospitalization treatment of the pensioner beneficiary and their eligible family members shall be borne by the statutory/autonomous bodies concerned as per CGHS approved rates and guidelines.
c) CGHS card(s) will be issued only on receipt of the recommendation of Statutory/Autonomous bodies concerned alongwith advance payment of requisite service charges at prescribed rate (on cost-to-cost basis) on annual basis. The CGHS cards will be renewed on annual basis on receipt of annual service charge in advance from the Statutory/Autonomous bodies concerned.
Further, the office of Additional Director (HQ), Central Govt. Health Scheme vide their O.M. No. F.No. 7-1/2013-CGHS/C &P/part/3409 dt. 09/07/2014 has also informed that in compliance to order dated 10/06/2014 issued by Ministry of Health & F.W, Govt. 12 of India, 8 Item No. 08 O.A. No. 1111/2020 Directorate has agreed to provide the CGHS facilities to the pensioners/family pensioners and retired employees of the Statutory/Autonomous bodies on cost to cost basis, who's serving counterparts are already covered by CGHS medical facilities. They will be entitled to OPD facilities and medicines from CGHS Wellness Centres in Delhi/NCR only.
In view of above, the Executive Committee of the Council decided to accept the proposal of the Ministry of Health & Family Welfare, New Delhi. 3.7. It is further case of the applicant that despite that decision of Executive Committee, the matter was forwarded to the Ministry of Health vide letter no. MCI- 154(3)/2016-Estt./118627 dated 30.06.2016. 3.8. Learned counsel for the respondents contended that the Bill was tabled before the Parliament in 2017 which got assent from Lok Sabha on 29.07.2019, thereafter from Rajya Sabha on 01.08.2019 and the President of India gave assent to the said Act on 08.08.2019. Then the Act came into force w.e.f. 25.09.2020.
3.9. For the purpose of the disposal of the present OA, he further contended that in a recent development vide Office order No. V.11013/81/2022-ME-I(Pt-2)(FTS No. 8184325) dated 19.09.2022. It reads as under:-
"xxx xxx xxx
2. In this regard, the matter was examined in the Ministry in consultation with EHS Section 9 Item No. 08 O.A. No. 1111/2020 and EHS Section observed that serving employees of erstwhile MCI were covered under CGHS. Therefore, decision may be taken by the NMC and concerned Division about the continuation of extension of CGHS facilities to such employees. If the decision is in affirmative, details of these employees who are still in service, along with the requisite annual subscription may be sent to AD, CGHS for renewal of their CGHS cards. Needless to say that only OPD facilities and Medicines from CGHS Wellness Centres are provided to the employees of Autonomous/Statutory Bodies on cost-to-cost basis. As regards, hospitalization/IPD treatment facilities, the beneficiaries may avail treatment in CGHS empanelled Hospitals at CGHS rates, but the expenditure on this account is to be borne by the concerned AB/SB.
3. Further, Pensioners of erstwhile MCI are not covered under CGHS. It is the current policy of CGHS, MoHFW not to extend CGHS facilities to any new organizations, viz.
Autonomous/Statutory Bodies, as the resources under the scheme are fully committed.
4. In light of above, NMC is requested to look into the matter and take appropriate action at the earliest under intimation to this Ministry. 3.10. My attention has also drawn to Section 60 and 61 of The Gazette of India dated 08.08.2019 issued by Ministry of Law and Justice. The same reads as under:-
"60. (1) With effect from such date as the Central Government may appoint in this behalf, the Indian Medical Council Act, 1956 shall stand repealed and the Medical Council of India constituted under sub-section (1) of section 3 of the said Act shall stand dissolved. (2) Notwithstanding the repeal of the Act referred to in sub-section (1), it shall not affect,--
(a) the previous operation of the Act so repealed or anything duly done or suffered thereunder; or 10 Item No. 08 O.A. No. 1111/2020
(b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed; or
(c) any penalty incurred in respect of any contravention under the Act so repealed; or
(d) any proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty may be imposed as if that Act had not been repealed.
(3) On the dissolution of the Medical Council of India, the person appointed as the Chairman of the Medical Council of India and every other person appointed as the Rules and regulations to be laid before Parliament. Power to remove difficulties. 102 of 1956. Repeal and saving. SEC.
1] THE GAZETTE OF INDIA EXTRAORDINARY 27 Member and any officer and other employee of that Council and holding office as such immediately before such dissolution shall vacate their respective offices and such Chairman and other Members shall be entitled to claim compensation not exceeding three months' pay and allowances for the premature termination of term of their office or of any contract of service:
Provided that any officer or other employee who has been, immediately before the dissolution of the Medical Council of India appointed on deputation basis to the Medical Council of India, shall, on such dissolution, stand reverted to his parent cadre, Ministry or Department, as the case may be:
Provided further that any officer or other employee who has been, immediately before the dissolution of the Medical Council of India, employed on regular or contractual basis by the Medical Council of India, shall, on and from such dissolution, cease to be the officer or employee of the Medical Council of India and his employment 11 Item No. 08 O.A. No. 1111/2020 in the Medical Council of India stand terminated with immediate effect:
Provided also that such officer or employee of the Medical Council of India shall be entitled to such compensation for the premature termination of his employment, which shall not be less than three months' pay and allowances, as may be prescribed.
(4) Notwithstanding the repeal of the aforesaid enactment, any order made, any licence to practice issued, any registration made, any permission to start new medical college or to start higher course of studies or for increase in the admission capacity granted, any recognition of medical qualifications granted, under the Indian Medical Council Act, 1956, which are in force as on the date of commencement of this Act, shall continue to be in force till the date of their expiry for all purposes, as if they had been issued or granted under the provisions of this Act or the rules or regulations made thereunder.
61. (1) The Commission shall be the successor in interest to the Medical Council of India including its subsidiaries or owned trusts and all the assets and liabilities of the Medical Council of India shall be deemed to have been transferred to the Commission.
(2) Notwithstanding the repeal of the Indian Medical Council Act, 1956, the educational standards, requirements and other provisions of the Indian Medical Council Act, 1956 and the rules and regulations made thereunder shall continue to be in force and operate till new standards or requirements are specified under this Act or the rules and regulations made thereunder:
Provided that anything done or any action taken as regards the educational standards and requirements under the enactment under repeal and the rules and regulations made thereunder shall be deemed to have been done or taken 12 Item No. 08 O.A. No. 1111/2020 under the corresponding provisions of this Act and shall continue in force accordingly unless and until superseded by anything done or by any action taken under this Act."
4. Submissions on behalf of the applicants:-
1) Learned counsel for the applicant in support of his case submitted that the present applicants are entitled to benefit of CGHS inasmuch as it is one of the "conditions of service" in the erstwhile MCI.
2) The said condition of service has not been taken away by the New Act.
3) Under the New Act, even otherwise does not give the legislative power to the NMC to take away the benefit qua the present retired employees are concerned. He placed reliance upon section 61(1) of The Gazette of India dated 08.08.2019 issued by Ministry of Law and Justice. The same reads as under:-
a. "61. (1) The Commission shall be the successor in interest to the Medical Council of India including its subsidiaries or owned trusts and all the assets and liabilities of the Medical Council of India shall be deemed to have been transferred to the Commission. "
4) The decision was already taken twice in the official noting but it has never been implemented.13 Item No. 08 O.A. No. 1111/2020
5) These employees cannot be denied benefit inasmuch as the similarly situated persons in other autonomous organization under Central Council for Research in Unani Medicines, Central Council for Research in Ayurvedic Sciences, Bureau of Indian Standard, Central Council for Research in Yoga and Naturopathy, Delhi Public Library, Lalit Kala Academy, Indira Gandhi National Centre for Arts, Indian Council for Cultural Relations, Sangeet Natak Academy, Indian Red Cross Society, National Seeds Corporation, Dental Council of India have been extended benefit.
6) He places reliance on the decision rendered by Hon'ble High Court of Delhi in W.P. (C) 11961 of 2009, W.P. (C) 6841/2010 and CM No. 13532 of 2010 decided on 31.03.2011 in the matter of President, CCRH Scientists Welfare Association and Ors. Vs. Union of India (UOI) and Ors. by Justice Dr. S. Muralidhar.
The operative portion of the same reads as under:-
a. "3. Counsel for the Respondents, on the other hand, refers to the reply filed in these petitions where the stand taken is that the benefit of the CGHS cannot be extended to retired employees of autonomous organisations under the central government due to 'lack of infrastructure' and 'financial constraints'. Elsewhere, it has been pleaded 14 Item No. 08 O.A. No. 1111/2020 that the CGHS facilities cannot be extended to retired employees of CCRH and NMML due to 'limited manpower resources at the disposal of the CGHS'."
5. Submissions on behalf of the respondents:-
1) The grant of any benefit or extension thereto, of any scheme or medical benefit or otherwise is a policy decision and therefore the Court should be slow to interfere in the same.
2) The office noting and non-communication cannot be the basis of grant of benefit as the same does not amount to final decision.
3) It has been further contended that under the New Act section 60 (2) (B). The same reads as under:-
"(2) Notwithstanding the repeal of the Act referred to in sub-section (1), it shall not affect,--
(a) xxx xxx xxx
(b) any right, privilege, obligation or liability acquired, accrued or incurred under the Act so repealed; or
4) He further laid emphasis in the provisos as mentioned in Sub-Section (iii) of Section 60 as already stated hereinabove. He further placed reliance upon section 60 (i), which reads as under:-
""60. (1) With effect from such date as the Central Government may appoint in this behalf, the Indian Medical Council Act, 1956 shall stand 15 Item No. 08 O.A. No. 1111/2020 repealed and the Medical Council of India constituted under sub-section (1) of section 3 of the said Act shall stand dissolved.
xxx xxx xxx (3) On the dissolution of the Medical Council of India, the persons appointed as the Chairman of the Medical Council of India and every other person appointed as the Member and any officer and other employee of that Council and holding office as such immediately before such dissolution shall vacate their respective offices and such Chairman and other Members shall be entitled to claim compensation not exceeding three months' pay and allowances for the premature termination of term of their office or of any contract of service.
Provided that any officer or other employee who has been, immediately before the dissolution of the Medical Council of India appointed on deputation basis to the Medical Council of India, shall, on such dissolution, stand reverted to his parent cadre, Ministry or Department, as the case may be:
Provided further that any officer or other employee who has been, immediately before the dissolution of the Medical Council of India, employed on regular or contractual basis by the Medical Council of India, shall, on and from such dissolution, cease to be the officer or employee of the Medical Council of India and his employment in the Medical Council of India stand terminated with immediate effect:
Provided also that such officer or employee of the Medical Council of India shall be entitled to such compensation for the premature termination of his employment, which shall not be less than three months' pay and allowances, as may be prescribed."
5) In support of his argument, he relied upon that decision rendered by Hon'ble Apex Court in the matter of 16 Item No. 08 O.A. No. 1111/2020 State of Uttaranchal and another Vs. Sunil Kumar Vaish and others in Civil Appeal No. 5374 of 2005, decided on 16.08.2011. The operative para of the same reads as under:-
"24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, can such noting be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be treated as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166 (1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be and authenticated in the manner provided in Article 77 (2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review."
6) He referred a decision by Hon'ble Apex Court in the matter of Pimpri Chinchwad New Township Development Authority Vs Vishnudev Coop. Housing Society in Civil Appeal No. 7649 of 2018, decided on 03.08.2018. The operative paras of the same reads as under:-
17Item No. 08 O.A. No. 1111/2020
"35. The question is whether the order dated 10.06.2004 passed by the then Revenue Minister directing release of the acquired land in question has the attributes of an order within the meaning of Section 48 of the Act or, in other words, whether the order in question created any right in favour of the landowners so as to enable them to claim mandamus for enforcement of such order against the State.
36. Our answer to the question is "no". It is for the reasons that: first, a mere noting in the official files of the Government while dealing with any matter pertaining to any person is essentially an internal matter of the Government and carries with it no legal sanctity; second, once the decision on such issue is taken and approved by the competent authority empowered by the Government in that behalf, it is required to be communicated to the person concerned by the State Government. In other words, so long as the decision based on such internal deliberation is not approved and communicated by the competent authority as per the procedure prescribed in that behalf to the person concerned, such noting does not create any right in favour of the person concerned nor it partake the nature of any legal order so as to enable the person concerned to claim any benefit of any such internal deliberation. Such noting(s) or/and deliberation(s) are always capable of being changed or/and amended or/and withdrawn by the competent authority.
37. xxx xxx xxx
38. Indeed, the aforementioned issue remains no more res integra and was decided by this Court in several decisions, such as State of Punjab vs. Sodhi Sukhdev Singh, State of Bihar vs. Kripalu Shankar, Rajasthan Housing Board vs. Shri Krishan, Sethi Auto Service 18 Item No. 08 O.A. No. 1111/2020 Station vs. DDA, and Shanti Sports Club & Anr. Vs. Union of India & Ors.,.
39. In Shanti Sports (supra) a Bench of two Judges of this Court, speaking through Singhvi, J., took note of all the previous case law on the subject above and held as under:
"37..............Although, the plain language of Section 48(1) does not give any indication of the manner or mode in which the power/discretion to withdraw from the acquisition of any land is required to be exercised, having regard to the scheme of Parts II and VII of the 1894 Act, which postulates publication of notification under Section 4(1), declaration under Section 6 and agreement under Section 42 in the Official Gazette as a condition for valid acquisition of the land for any public purpose or for a company, it is reasonable to take the view that withdrawal from the acquisition, which may adversely affect the public purpose for which, or the company on whose behalf the acquisition is proposed, can be done only by issuing a notification in the Official Gazette.
* * *
39. The requirement of issuing a notification for exercise of power under Section 48(1) of the Act to withdraw from the acquisition of the land can also be inferred from the judgments of this Court in Municipal Committee, Bhatinda v. Land Acquisition Collector and others (1993) 3 SCC 24 , U.P. State Sugar Corporation Ltd. v. State of U.P. and others (1995) Supp 3 SCC 19 Item No. 08 O.A. No. 1111/2020 538, State of Maharashtra and another v. Umashankar Rajabhau and others (1996) 1 SCC 299 and State of T.N. and others v. L. Krishnan and others (1996) 7 SCC 450. * * *
43. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review."
44. The appeal thus succeeds and is accordingly allowed. Impugned order is set 20 Item No. 08 O.A. No. 1111/2020 aside. As a consequence, the writ petition filed by respondent No.1 stands dismissed with costs quantified at Rs.25,000/- to be payable by respondent No.1 to the appellant."
7) He then referred to Paragraphs 26 to 29 of Nareshbhai Bhagubhai and Others Vs Union of India and Others in Civil Appeal No. 6270 of 2019, with Ravibhai Vallabhbhai Sutariya and Others Vs Union of India and Others in Civil Appeal No. 6271 of 2019, with Ishwerbhai Bhikabhai Patel Vs. Union of India and Others in Civil Appeal No. 6272 of 2019.
8) Learned counsel for respondents has drawn our attention to the judgment passed by this Tribunal on 26.11.2019 in OA No. 1541/2018. The same reads as under:-
"13. Having considered the arguments and the material placed on record from both sides. I am of the view that employees of NYKS- an autonomous organization, cannot be considered at par with Central Government employees. As serving employees of NYKS do not get the CGHS facility, there is no question of extending this facility to them after retirement. It has also to be kept in mind that as per the decision taken in the meeting of Committee of Secretaries held on 04.06.2015, CGHS facility would not be extended to any organisation."
9) Further, learned counsel for respondents drew my attention to judgment of Hon'ble High Court in Rakesh 21 Item No. 08 O.A. No. 1111/2020 Likhar Vs Indian Nursing Council & Anr., dated 15.09.2010. Para 9 and 10 of the same reads as under:-
"9. It is settled proposition of law that the Courts in exercise of extraordinary writ jurisdiction under Article 226 of the Constitution of India cannot delve into the realm of policy making. Therefore, each of the claims raised before this Court shall be tested on the touchstone of the existing policy. It is only if the claims raised are in consonance of the extant policy that the same shall be allowed.
10. The validity of the policy was upheld by the Supreme Court in the case of State of Punjab and Others Vs. Ram Lubhaya Bagga etc., 1998 (2) SCC SLR 220, at page 227 and 228 in para 23 and 27 which read as under:
"23. Now we revert to the last submission, whether the new State policy is justified in not reimbursing an employee, his full medical expenses incurred on such treatment, if incurred in any hospital in India not being a Government hospital in Punjab.
Question is whether the new policy which is restricted by the financial constraints of the State to the rates in AIIMS would be in violation of Article 21 of the Constitution of India. So far as questioning the validity of government policy is concerned in our view it is not normally within the domain of any court, to weigh the pros and cons of the policy or to scrutinize it and test the degree of its beneficial or equitable disposition for the purpose of 22 Item No. 08 O.A. No. 1111/2020 varying, modifying or annulling it, based on howsoever sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When Government forms its policy it is based on number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints.
27. No State of any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizen including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India."23 Item No. 08 O.A. No. 1111/2020
10) He also relies upon decision rendered by the Hon'ble High Court in S.P Mediratta and Ors. Vs Union of India & Ors. in W.P.(C) No. 2701/2013 dated 05.09.2013. Para 4 and 5 of the same read as under:-
"4. Since in the present case, the Central Government is refusing to provide finances, and therefore, respondent no.2 is not able to give the CGHS benefits to the petitioners, I cannot issue such directions as prayed for by the petitioners.
5. Learned counsel for the petitioner places reliance upon the judgment of a learned Single Judge of this Court in the case of President, CCRH Scientists Welfare Association Vs. Union of India 2011 (179) DLT 21 to argue that all employees of autonomous organizations are automatically in view of this judgment entitled to be granted CGHS benefits. I cannot agree with the interpretation as it is sought to be given by the counsel for the petitioner on the ratio of the judgment because paras 3 and 4 make it clear that the employees were granted benefits inasmuch as during the period of service i.e before their retirement, they had been given CGHS benefits, and denial of CGHS benefits would have been against the service regulations which specifically provided for such benefits to the employees. I may also state that the judgment of the learned Single Judge does not refer to the binding precedent of the Supreme Court in the case of I.D.P.L. (Supra) which directs that Courts cannot impose financial burden upon the autonomous organizations and such 24 Item No. 08 O.A. No. 1111/2020 decision can only be taken by the appropriate authorities."
11) Learned counsel for respondents further relies upon decision rendered by Central Administrative Tribunal, Principal Bench in the matter of R.S. Giri, Vs. Union of India & Others dated 23.04.2014 in OA No. 1549/2013 and to strengthen his argument the Court should be slow in interfering any policy matter and therefore on the basis of aforesaid settled law it is urged on the behalf of the respondents that the same is the policy decision and cannot be interfered.
6. Analysis
1) This Tribunal, on perusal of the records and hearing the submissions of the learned counsels for the respective parties, is of the view that it is not disputed fact that the retired employees of MCI under erstwhile MCI were entitled to certain kind of benefit which was extended to them by virtue of executive decision based on the decision of Government of India in notification issued by Ministry of Health and Family Welfare from time to time.
2) It is also observed from the records that even though there was a golden handshake of the existing employees as per the new Act, where the services were terminated. 25 Item No. 08 O.A. No. 1111/2020 However, the new Act is silent about the status of retired employees, as to "Whether, the CGHS facility being one of the 'incident of service' can be altered/modified without any notice and/or amended to Act by executive instructions .
3) It is also borne from the Act itself that Section 60 (2)
(d) and Section 61 (1), which read as under:-
"60.(2) (d) Any proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty as aforesaid, and any such proceeding or remedy may be instituted, continued or enforced, and any such penalty may be imposed as if that Act had not been repealed.
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61. (1) The Commission shall be the successor in interest to the Medical Council of India including its subsidiaries or owned trusts and all the assets and liabilities of the Medical Council of India shall be deemed to have been transferred to the Commission. "
4) During the course of argument much stress was laid on the recent circular of 19.09.2022, more specifically para 2 and 3 of the said notification is based for a notion that due to financial crunch of resources the scheme of CGHS cannot be given effect to and the NMC is not bound by any executive decision taken by erstwhile MCI and therefore the NMC cannot be saddled with the financial implication.
26Item No. 08 O.A. No. 1111/2020
5) On perusal of the notings and records and the case laws and submissions addressed by both the learned counsels, this Tribunal is of the view that in the given facts and circumstances of the case, the retired employees cannot be denied the facilities of CGHS merely due to lack of resources of financial crunch. It is irony to be noted that erstwhile MCI the aim and objective of MCI for regulation of the medical institution and the conduct are being denied of the benefit under NMC which also contemplates the same object.
6) Therefore the organization/commission which is a parent organization to take decision and to take a call upon the medical health services and establishing of institution and regulation thereto cannot be denied the said benefit.
7) It is also seen that the Government endeavour is to extend health services to all irrespective of any cadre or distinction between any post or organization.
8) A conscious decision had already been taken to extend the CGHS facilities to all autonomous organization and therefore it cannot lie in the mouth of NMC to deny such benefit, more specifically when the persons who were working in MCI were also working for 27 Item No. 08 O.A. No. 1111/2020 the welfare and health services of Medical Institute of our country.
9) It is also highlighted that only the said facilities to be confined and extended only to the few of the retired employees. Interestingly, in the Rajya Sabha there was a Committee of petition i.e. 128th report or a petition praying for extension of CGHS facility to retired and retiring Employees of Provident Fund Organization. The committee which clearly spells out the legislative intends of our leaders who are responsible for framing the law of the country and observed and recommended as under:-
"17. In the course of the examination of the petition the Committee also observed that the Ministry of Labour and Employment has not been sympathetic to the plight of the retired employees of EPFO and it did not take any constructive steps to think of any alternative scheme for such category of employees after the Ministry of Health and Family Welfare refused to extend the CGHS facilities to them. One alternative medical benefit scheme was stated to have been approved by the Executive Committee, CBT, EPF way back in 1997 but it did not find favour with the Department of Expenditure of the Ministry of Finance but nothing seems to have been done thereafter. The Ministry simply left the retirees the only option of an insurance scheme which is renewed on year to year basis about which many of the retirees might not even be aware. The petitioner, as a matter of fact, rejected it outright as he did not have necessary financial means to deposit the money in advance for treatment in hospitals under the scheme. The Central Provident Fund Commissioner's submission, on the contrary, in this context was that under the current insurance policy for the retired employees, cashless hospitalization service was being provided and admission by them 28 Item No. 08 O.A. No. 1111/2020 could be taken in all Taluka hospitals. The view of the Secretary of the Ministry of Labour was that he would urge the Central Provident Fund Commissioner to keep this aspect in mind while negotiating with the Oriental Insurance Company for renewal of Mediclaim Policy which is currently valid upto 2006. The Committee finds sharp variation in the views of the petitioner and the Ministry on this score and if the reality is that the Mediclaim Policy of Oriental Insurance Company entitles the retired employees of EPFO to cashless admission, then why the petitioner should complain. The Committee is, therefore, of the view that the Ministry of Labour and Employment needs to look into the entire issue of medical facilities for retired employees of EPFO afresh and evolve a new scheme for them, pending their being extended CGHS facilities, so that they do not face the type of hardships which the petitioner brought to the notice of the Committee."
10) This view is also strengthened by various decisions of the Hon'ble Apex Court as well as Hon'ble High Court(s).
(i) 19. In (1996) 4 SCC 37 (Paschim Banga Khet Mazdoor Samity and Others Vs. State of W.B. and another), the Supreme Court had observed :-
"9. The Constitution envisages the establishment of a welfare State at the federal level as well as at the State level. In a welfare State the primary duty of the Government is to secure the welfare of the people. Providing adequate medical facilities for the people is an essential part of the obligations undertaken by the Government in a welfare State. The Government discharges this obligation by running hospitals and health centres which provide medical care to the person seeking to avail of those facilities. Article 21 imposes an obligation on the State to safeguard the right to life of every person.29 Item No. 08 O.A. No. 1111/2020
Preservation of human life is thus of paramount importance. . . .
16. It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. [See: Khatri (II) v. State of Bihar, (1981) 1 SCC at p.627.] The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State to provide medical aid to preserve human life. In the matter of allocation of funds for medical services the said constitutional obligation of the State has to be kept in view. . . . ." (Emphasis added)
(ii) In (1998) 4 SCC 117 (State of Punjab & Others Vs. Ram Lubhaya Bagga & others), after referring to several earlier decisions, the Supreme Court has recognised that though the right under Article 21 obviously would include the right to lead a healthy life, yet such right cannot be considered as an absolute right and facilities are to be provided by the State within their financial constraints.
(iii) AIR 1997 SCC 1225 = (1997) 2 SCC 83 (State Of Punjab & Others V. Mohinder Singh Chawla & Others), it was observed :-30 Item No. 08 O.A. No. 1111/2020
"4. . . . It is now settled law that right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities. If the government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference whereat the government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee. The High Court was, therefore, right in giving direction to reimburse the expenses incurred towards room rent by the respondent during his stay in the hospital as an in-patient.
5. The learned counsel then contends that the State would be saddled with needless heavy burden, while other general patients would not be able to get similar treatment. We appreciate the stand taken that greater allocation requires to be made to the general patients but unfortunately due attention for proper maintenance and treatment in government hospitals is not being given and mismanagement is not being prevented. Having had the constitutional obligation to bear the expenses for the government servant while in service or after retirement from service, as per the policy of the Government, the Government is required to fulfil the constitutional obligation. Necessarily, the State has to bear the expenses incurred in that behalf.
...
11. We are unable to agree with the stand taken by the Government. It is seen that the Government had decided in the proceedings dated 8-10-1991 to reimburse the medical expenditure incurred by the Punjab Government employees/pensioners and dependants on treatment taken abroad in a 31 Item No. 08 O.A. No. 1111/2020 private hospital. It is stated in paragraphs 2 and 3 that the Government has prepared a list of those diseases for which the specialised treatment is not available in the Punjab Government hospitals but it is available in certain identified private hospitals, both within and outside the State. It was, therefore, decided to recognise these hospitals for treatment of the diseases mentioned against their names in the enclosed list for the Punjab Government employees/pensioners and their dependants. The terms and conditions contained in the letter under reference would remain applicable. The Government can, however, revise the list in future. The name of the disease for which the treatment is not available in the Punjab Government hospitals is shown as Open Heart Surgery and the name of the private hospital is shown as Escorts Heart Institute, New Delhi as one of the approved hospitals/institutions. Thus, for open heart surgery or heart disease the Escorts Heart Institute is an authorised and recognised institution by the Government of Punjab. Consequently, when the patient was admitted and had taken the treatment in the hospital and had incurred the expenditure towards room charges, inevitably the consequential rent paid for the room during his stay is an integral part of his expenditure incurred for the treatment. Consequently the Government is required to reimburse the expenditure incurred for the period during which the patient stayed in the approved hospital for treatment. It is incongruous that while the patient is admitted to undergo treatment, he is refused the reimbursement of the actual expenditure incurred towards room rent and is given the expenditure of the room rent chargeable in another institute whereat he had not actually undergone treatment. Under these circumstances, the contention of the State Government is obviously untenable and incongruous. We hold that the High Court was right in giving the 32 Item No. 08 O.A. No. 1111/2020 direction for reimbursement of a sum of Rs.20,000 incurred by the respondent towards the room rent for his stay while undergoing treatment in Escorts Heart Institute, New Delhi." (Emphasis added)
(iv) In (2006) 8 SCC 399 (Confederation Of Ex-
Servicemen Associations And Others V. Union Of India And Others), while repelling the contention that refusal to extend similar facilities to Ex-servicemen when compared to Servicemen in the employment was discriminatory, the Supreme Court nevertheless agreed with the view expressed in (1998) 4 SCC 117 (cited supra), and observed in para 66 as follows:-
"66. We are in agreement with the above view. In our considered opinion, though the right to medical aid is a fundamental right of all citizens including ex-servicemen guaranteed by Article 21 of the Constitution, framing of scheme for ex-servicemen and asking them to pay one-time contribution neither violates Part III nor is it inconsistent with Part IV of the Constitution. Ex-servicemen who are getting pension have been asked to become members of ECHS by making one-time contributionof reasonable amount (ranging from Rs.1800 to Rs.18,000). To us, this cannot be held illegal, unlawful, arbitrary or otherwise unreasonable."
Ultimately it was observed :-
"71. For the reasons aforesaid, the writ petition deserves to be partly allowed. Keeping in view the totality of facts and circumstances, in our considered view, the ends of justice would be met if we hold the Ex-Servicemen Contributory Health 33 Item No. 08 O.A. No. 1111/2020 Scheme, 2002 (ECHS) to be legal, valid, intra vires and constitutional but direct the respondent Government either to waive the amount of contribution or to pay such amount on behalf of those ex-servicemen who retired prior to 1-1-1996 and who intend to avail medical facilities and benefits under the said Scheme by exercising option by becoming members of ECHS. In other words, it is open to ex-defence personnel, who retired prior to 1- 1-1996 to become members of ECHS and to claim medical facilities and benefits under the said Scheme without payment of contribution amount. They are, however, not entitled to claim medical allowance in future. The writ petition is accordingly disposed of."
(Emphasis added)
(v) In Narendra Pal Singh V. Union Of India And Others [79 (1999) DLT 358], the petitioner, who had retired from the Central Government service, claimed medical reimbursement for the expenses for the operation done on emergent basis, which was not accepted on the ground that he had taken treatment in a non-CGHS covered area, and as per the CGHS orders and instructions, he was no entitled to such reimbursement. Single Judge of the Delhi High Court after referring to the decisions of the Supreme Court reported in Surjit Singh case (AIR 1996 SC 1388) and Mohinder Singh Chawla case (AIR 1997 SC 1225), observed :-
"3.The petitioner has admittedly suffered the ailment and required urgent and immediate 34 Item No. 08 O.A. No. 1111/2020 treatment in an emergency. The plea of the Government that he has not taken prior sanction for treatment in non-C.G.H.S. Hospital is clearly erroneous and cannot be entertained. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. It is always open for the Government to grant ex- post facto sanction subject to verification of the claim which has not been denied in the present case. . . .
(Emphasis added) It was further observed :-
"5. The law is, therefore, well settled that right to health is an integral part to life and the Government has constitutional obligation to provide the health facilities to its employees or retired employees and in case an employee requires a specialised treatment in an approved hospital it is the duty of the Government to bear or reimburse the expenses. The petitioner in this case had to be operated in an emergency as he suffered a heart problem and in case he had waited for a prior sanction he might not have survived. Therefore, in this situation it is the duty of the Government to grant ex-post facto sanction and not deny the claim of the petitioner on technical and flimsy grounds. Firstly the Government does not give any proper reasoning to deny the claim of the petitioner in its communication dated 4th December, 1997 and secondly the affidavit of Dr. P.K. Baliar Singh merely states that since the petitioner had taken the treatment in non- C.G.H.S. covered area and as per Central Government Health Scheme Orders and instructions as issued by the Government, a pensioner is not entitled to the facilities of 35 Item No. 08 O.A. No. 1111/2020 reimbursement. These reasons cannot be appreciated in view of the settled position that the petitioner is entitled to take recourse to an emergency treatment in any area if the circumstances and the nature of disease so warrant."
(Emphasis added)
(vi) In B.R. Mehta V. Union Of India & Others [79(1999) DLT 388], the petitioner retired from the Central Excise and Customs at Karnal. There was no C.G.H.S. Hospital or dispensary at Karnal, where the retired Central Government employees could get treatment. His claim for medical reimbursement was resisted inter alia on the ground that CGHS facilities were not available in Karnal and the petitioner was not a card holder since there was no CGHS facility.
The Delhi High Court repelled such callous contention by observing:-
"6. The learned counsel for the respondents on the above basis has contended that the petitioner was not a C.G.H.S. card-holder and, therefore, he was not entitled to any reimbursement. This argument is totally fallacious as the petitioner retired from the services of the Central Government from the Department of Central Excise where he had served for 41 years and was in any case entitled to the reimbursement as permissible under the rules. The petitioner after retirement settled in Karnal where Central Government does not operate its health scheme (C.G.H.S.). Therefore, the petitioner was left 36 Item No. 08 O.A. No. 1111/2020 with no option but to get himself examined at Civil Hospital, Karnal which is operated by the State. A specific permission was obtained as will be indicated from the communication of the Director General Health Services, Haryana dated 1st January, 1997 to Principal Medical Officer, General Hospital, Karnal according approval to the petitioner to undertake journey from Karnal to Escorts Heart Institute & Research Centre, New Delhi for medical treatment. The bill of the petitioner for medical treatment was accordingly forwarded to Director, C.G.H.S. Ministry of Health and Family Welfare for post facto approval. In this background it may not be understood how the claim of the petitioner can be denied in the facts and circumstances of the present case. The petitioner was entitled to take steps for self preservation and was advised to undergo surgery at Escorts Heart Institute & Research Centre, New Delhi. ..."
(Emphasis added) 25.1 After placing reliance upon the decisions of the Supreme Court in Surjit Singh case (AIR 1996 SC 1388) and Mohinder Singh Chawla case (AIR 1997 SC 1225), it was further observed:-
"8. The right to health is an integral part to life and it was the constitutional obligation of the State to provide the health facilities and the Government Servant is entitled to reimbursement of all expenses incurred by him on specialised treatment after his case was referred to a specialised hospital as was the case of the petitioner in the present case.
9. In the present case the petitioner has been granted sanction for being treated in Escorts Heart Institute and Research Centre, New Delhi and in this background it is not possible to appreciate the stand of the Government that since the petitioner was not covered by C.G.H.S. scheme he was not entitled to any reimbursement when the 37 Item No. 08 O.A. No. 1111/2020 Government itself had not framed any regulations and laid any criteria to decide the case of pensioners staying in non-C.G.H.S. areas. The basic contentions of the respondent that the petitioner was not eligible for reimbursement of his medical claim under Central Services (Medical Attendance) Rules nor he was eligible for C.G.H.S. facilities since he had not enrolled himself as a C. G. H. S. beneficiary though such facilities were not available in Karnal is clearly misconceived. The petitioner does not cease to be a pensioner as having retired from Central Government service and, therefore, it cannot be said that he will be entitled to no reimbursement on the above grounds. The Government itself is not clear with regard to the applicability of rules."
(vii) In a recent judgment the case of Punjab State Cooperative Agricultural Development Bank Ltd. Vs The Registrar, Cooperative Societies And Others in Civil Appeal No(S). 297298 OF 2022 (Arising out of SLP (Civil) No(s). 19401941 of 2020) dated 11.01.2022, the Hon'ble Apex Court while dealing with case of pension has held as under:-
"40. Accordingly, the Rules 1978 were amended and Rule 15(ii) was introduced authorizing the Board of Directors to formulate pension scheme with the prior approval of the Registrar Cooperative Societies, Punjab. Pursuant thereto, the amendment was made with an option that such of the employees who opt for the rules (pension scheme) shall be covered by these rules. At the given time, such employees who do not opt for these rules shall be governed by Act, 1952.38 Item No. 08 O.A. No. 1111/2020
41. Indisputedly, all the respondent employees were given the option to become member of the pension scheme on being retired from service and they continued to derive the benefit of pension after they had opted continuously until the year 2010 and only thereafter, the litigation started when the appellant Bank stopped making payment of pension in terms of the Bank pension scheme. Although the Bank pension scheme will not apply in cases to employees employed on or after 1 st January 2004. Later on, the Bank took a decision by deleting Rule 15(ii) of pension scheme by an amendment dated 11th March, 2014 and that became the cause of grievance of the employees in questioning the action of the Bank by approaching the Courts for ventilating their grievance.
42. The question that emerges for consideration is as to what is the concept of vested or accrued rights of an employee and at the given time whether such vested or accrued rights can be divested with retrospective effect by the rule making authority.
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47. The exposition of the legal principles culled out is that an amendment having retrospective operation which has the effect of taking away the benefit already available to the employee under the existing rule indeed would divest the employee from his vested or accrued rights and that being so, it would be held to be violative of the rights guaranteed under Articles 14 and 16 of the Constitution.
48. In the instant case, the Bank pension scheme was introduced from 1st April 1989 and options were called from the employees and those who had given their option became member of the pension scheme and accordingly pension was 39 Item No. 08 O.A. No. 1111/2020 continuously paid to them without fail and only in the year 2010, when the Bank failed in discharging its obligations, respondent employees approached the High Court by filing the writ petitions. The Bank later on withdrawn the scheme of pension by deleting clause 15(ii) by an amendment dated 11th March, 2014 which was introduced with effect from 1st April, 1989 and the employees who availed the benefit of pension under the scheme, indeed their rights stood vested and accrued to them and any amendment to the contrary, which has been made with retrospective operation to take away the right accrued to the retired employee under the existing rule certainly is not only violative of Article 14 but also of Article 21 of the Constitution.
49. It may also be noticed that there is a distinction between the legitimate expectation and a vested/accrued right in favour of the employees. The rule which classifies such employee for promotional, seniority, age of retirement purposes undoubtedly operates on those who entered service before framing of the rules but it operates in futuro. In a sense, it governs the future right of seniority, promotion or age of retirement of those who are already in service.
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55. In our view, non-availability of financial resources would not be a defence available to the appellant Bank in taking away the vested rights accrued to the employees that too when it is for their socioeconomic security. It is an assurance that in their old age, their periodical payment towards pension shall remain assured. The pension which is being paid to them is not a bounty and it is for the appellant to divert the 40 Item No. 08 O.A. No. 1111/2020 resources from where the funds can be made available to fulfil the rights of the employees in protecting the vested rights accrued in their favour.
56. So far as the submission made by the serving employees is concerned, they have no locus to question. At the same time, their apprehension as being projected to this Court is completely misplaced for the reason that employer/employees contribution is being provided under the employees pension scheme(EPS) of the Act 1952 which is made applicable to the serving employees and they are entitled to get pension in terms of the provisions of the Act 1952. So far as their complaint regarding payment of contribution is concerned, it is in no manner going to be adjusted for payment of pension to retirees/respondents, who are entitled to get their pension in terms of the pension scheme of which they are members and it is for the appellant Bank to reserve the resources and make payment to the retired employees seeking pension to the scheme in vogue when they became members and took benefits pursuant thereto."
11) Conclusion
1) In light of the above well settled preposition of law, there cannot be any discrimination qua the retired employees insofar as giving effect to the CGHS is concerned, any action will be violative of Article 14 and 21 of the Constitution of India. It is not disputed that proposition of law as addressed by the learned counsel for the respondents that the same is a policy decision as stated in 41 Item No. 08 O.A. No. 1111/2020 various judgements. However, in the facts and circumstances of the case, more particularly when the assets and liabilities were transferred to the NMC as per 60 (i), the same cannot be denied to the present applicants, who are very few in numbers as already stated.
2) Therefore in light of above the OA is disposed off with the following directions to the respondents:-
(i) The denial of benefit to the retired employees is prima facie contrary to spirit of Article 14 and 21 of Constitution of India.
(ii) Corrective measures be taken at appropriate level extending the benefit to present applicants within a period of two months from date of receipt of the certified copy of the order.
(iii) Consider the case of the applicants afresh as it appears that there is some gap between the period of repeal and date of implementation, (the date on which the NMC Act came into existence). The applicants in present case have not been dealt specifically in terms of section 61 of the new Act.
(iv) In view of the directions contained above, the Registry is directed to mark a copy of judgment to the following:-
(a) Secretary, Govt. of India, Ministry of Health and family Welfare, 42 Item No. 08 O.A. No. 1111/2020
(b) The Secretary, National Medical Commission, for compliance.
(Manish Garg) Member (J) /neetu/