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Shri Pratap Singh (Pensioner) v. Union of India through Director - Case No. 284/2006 [2006] INCAT 636 (23 August 2006)

Central Administrative Tribunal

Principal Bench

OA No.284.2006

New Delhi this the 23rd day of August, 2006.

Honble Mr. Shanker Raju, Member (J)

Shri Pratap Singh (Pensioner),

H. No.445/Ward No.2,

Thakurwala,

Old Faridabad,

Haryana-121002. -Applicant

(By Advocate Shri P.I. Oommen)

-Versus-

Union of India through:

1. Director,

Subsidiary Intelligence Bureau,

Ministry of Home Affairs,

5, Moti Lal Nehru Place,

Akbar Road,

New Delhi.

2. The Director,

CGHS,

Nirman Bhawan,

New Delhi.

3. The Under Secretary,

Ministry of Health and Family Welfare

(Department of Health),

Nirman Bhawan,

New Delhi. -Respondents

(By Advocate Shri Amit Anand)

O R D E R (ORAL)

By virtue of this OA a retiree from Government Service has assailed an order passed by the respondents on 20.12.2005, where on non-applicability of Civil Services (Medical Attendance) Rules, 1944 (hereinafter referred to as CS (MA) Rules, for short) claim of applicant for medical reimbursement has been turned down.

2. Applicant, who retired on superannuation as a Private Secretary on 31.10.1997 from the Ministry of Home Affairs (MHA), was an erstwhile CGHS beneficiary. On account of a severe heart-attack on 8.9.1999 he underwent a bye-pass surgery in Escorts Heart Institute and Research Centre, Okhla, New Delhi, where he remained as an indoor patient and had incurred an amount of Rs.1,50,000/- towards medical expenses. On submission of claim for medical reimbursement to the Director, CGHS, within the stipulated period, was recommended and forwarded vide MHAs letter dated 4.11.1999. The claim was rejected on the ground that the CS (MA) Rules are not applicable to retired Government officials.

3. An appeal preferred when turned down, gives rise to the present OA.

4. Before dwelling upon the claim of applicant it is undoubtedly declared in law that right of life, including right to health is a fundamental right guaranteed under the Constitution of India, as held by the Apex Court in N.D. Jayal v. Union of India, (2004) 9 SCC 362. CS (MA) Rules insofar as their applicability is concerned Rule-2 provides that these rules apply to Government servants other than in Railways and exclude within their ambit the retired Government officials. The Government in its own wisdom by an OM dated 5.6.1998 issued by the Ministry of Health and Family Welfare decided as follows:

G.I. Min. of Health & F.W., O.M. No.S-14025/4/96-MS, dated 5-6-1998.

Extension of CS (MA) Rules, 1944, to pensioners residing in areas not covered by CGHS.

The undersigned is directed to refer to the Department of Pension and Pensioners Welfare, O.M. No.45/74/97-PP&PW (C), dated 15-4-1997 on the above subject and to say that it has been decided by the Ministry that the pensioners should not be deprived of medical facilities from the Government in their old age when they require them most. This Ministry has, therefore, no objection to the extension of the CS (MA) Rules to the Central Government pensioners residing in non-CGHS areas as recommended by the Pay Commission. However, the responsibility of administrating the CS (MA) Rules for pensioners cannot be handled by CGHS. It should be administered by the respective Ministries/Departments as in the case of serving employees covered under CS (MA) Rules, 1944. The Department of Pension and Pensioners Welfare would need to have the modalities worked out for the implementation of the rules in consultation with the Ministries/Departments prior to the measure being introduced to avoid any hardships to the pensioners. The pensioners could be given a one-time option at the time of their retirement for medical coverage under CGHS or under the CS (MA) Rules, 1944. In case of a pensioner opting for CGHS facilities, he/she would have to get himself/herself registered in the nearest CGHS city for availing of hospitalization facilities. In such cases, the reimbursement claims would be processed by the Additional Director, CGHS of the concerned city. For those opting for medical facilities under the CS (MA) Rules, the scrutiny of the claims would have to be done by the parent office as in the case of serving employees and the payment would also have to be made by them. The list of AMAs to the appointed under CS (MA) Rules would be decided Ministry/Department-wise as provided under the rules. The beneficiaries of the CS (MA) Rules, 1944, would be entitled to avail of hospitalization facilities as provided under these rules.

The Department of Pension and Pensioners Welfare are requested to take further necessary action in the matter accordingly.

5. The aforesaid is a conscious decision of the Government taken in its own wisdom after considering all the quarters.

6. The aforesaid decision of the Government has been considered in judicial pronouncements, including by a Bench of this Tribunal at Ahmedabad in OA-99 of 2000 in Sadashiv B. Marathe v. Union of India & Ors., decided on 12.05.2004, holding right to health as an integral part of life in the light of OM dated 5.6.1998 medical reimbursement to the retired Government servant was allowed. The aforesaid decision when was assailed before the Gujarat High Court in Special CA No.13120 of 2004, has reiterated on affirmation the decision of the Tribunal by an order dated 8.10.2004.

7. Another Bench of the Tribunal at Gwalior in Lakshmi Chand v. Comptroller and Auditor General of India & Ors., 2005 (2) SLJ (CAT) 145, reiterated the aforesaid view. The aforesaid decision has been implemented by the respondents. MHAs OM dated 28.3.2000 has extended the actual expenditure incurred on medical treatment in any of the Central Government Hospitals recognized by the CGHS. However, an OM issued by the Department of Pension and Pensioners Welfare on 12.1.1999 sought views of all Ministries/Departments of the Government of India to take a final decision.

8. Ultimately, an OM by way of clarification issued on 20.8.2004 lays down as follows:

Office Memorandum

Sub: Clarification on the views of the Department on recommendation of the 5th Central Pay Commission on extension of CS (MA) Rules, 1944 to central government pensioners residing in areas not covered by CGHS.

The CS (MA) Rules, 1944 is not applicable to the central government pensioners. The 5th Central Pay Commission had recommended extension of CS (MA) Rules, 1944 to the central government pensioners residing in the areas not covered by CGHS. On a reference received from the Department of Pension and Pensioners Welfare on this subject, the response of the Department of Health had been conveyed through the O.M. No.S.14025/4/96-MS dated 5.6.1998. The response of this Department was that it did not have any objections to the proposal of extension of CS (MA) Rules, 1944 to Central Government pensioners residing in non-CGHS areas as recommended by the 5th Pay Commission, subject to the condition that the responsibility of administering the CS (MA) Rules, 1944 for pensioners would be of the Departments/Ministries concerned.

The said O.M. dated 5.6.1998 was in reply to a reference in O.M. No.45/4597 PP&PW (C) dated 15.4.97 from the Department of Pensioners and Pensioners Welfare. After that also communication between these two Departments had continued on this subject. In fact in a subsequent O.M. of the same number dated 12.1.1999, the views of all the Ministries/Departments of the Government of India had been sought before a final decision could be taken. But unfortunately, the O.M. dated 5.6.1998 has been misinterpreted by some pensioners as the final order of the Government of India to extend CS (MA) Rules, 1944 to pensioners. A lot of avoidable litigation has already taken place, because some pensioners have obtained favourable orders from various courts/tribunals on the basis of the said O.M. dated 5.6.1998.

It is therefore considered necessary to clarify unequivocally that the O.M. dated 5.6.1998 was not intended to be a final order extending the applicability of CS (MA) Rules, 1944 to pensioners. In fact, it is not possible for any individual department to take such policy decisions without obtaining views of various departments, and particularly, the Department of Expenditure. Such being the case, in the process of examining the recommendations of the 5th Pay Commission on this issue, the Department of Expenditure has categorically said that in view of huge financial implications, it is not feasible to extend CS (MA) Rules, 1944 to pensioners.

Therefore, any interpretation based on the O.M. dated 5.6.98 of this Department that the pensioners once come within the purview of the CS (MA) Rules, 1944 is wholly misplaced.

9. If one has regard to the above, the previous OM dated 5.6.1998 has not been superseded or deleted in any manner but has been clarified to the extent that the pensioners would not come within the purview of CS (MA) Rules.

10. A Single Bench at Principal Bench of this Tribunal in OA-1988 of 2004 on 6.9.2005 in Chander Shil Bhatia v. Union of India & Ors., observed as under:

10. As far as the contention raised by the learned counsel for Respondent No.3 that the applicant has been paid a sum of Rs.100/- per month in terms of Ministry of Personnel, Public Grievances and Pensions OM dated 19.12.1997 is concerned, I find that such aspects had been considered by the Division Bench of the Madras Bench of the Tribunal in OA No.669/2004 (supra), and it was rejected. The further plea raised by the respondents that the OM dated 05.06.1998 was not a final order and necessary clarifications had been issued on 20.08.2004, the said Division Bench observed that a clarification cannot over-ride the decision of the Ministry which had been conveyed after due consideration and OM issued earlier cannot be nullified by a clarification issued subsequently. Shri G.S. Lobana, learned counsel for applicant strenuously urged that the clarificatory instructions cannot supersede or take away the right itself under the regulations/instructions sought to be clarified and for this purpose reliance was placed on 1997 (1) SCC 641, Director General of Posts & Others vs. B. Ravindran and Another. In this case, the Honble Supreme Court under para-16 observed as under:

Under these circumstances, the Government could not have the guise of a clarificatory order, taken away the right which had accrued to such re-employed pensioners with retrospective effect by declaring that while considering hardship the last pay drawn at the time of retirement was to be compared with the initial pay plus pension whether ignorable or not.

11. I may note on the face of it that the OM dated 20.08.2004 which has been termed as a certificatory OM to earlier OM dated 05.06.1998 states that the said OM had been mis-interpreted by some pensioners as the final order of the Government of India as to CS (MA) rules to pensioners. I may note that the judgments pronounced on the subject have been rendered by various Bench of this Tribunal, which is the competent Court of Law, and upheld by the High Court in the Petitions noticed hereinabove and, therefore, I find not justification in the respondents stand that the said OM dated 05.06.1998 had been mis-interpreted. It is well settled that administrative ipse dixit cannot infiltrate on to an arena which stands by judicial orders (2001 (5) SCC 327, Anil Rattan Sarkar vs. State of West Bengal).

12. I may also note the fact that the Division Bench of this Tribunal at Bangalore in OA No.704/2001 N. Nanjundaiah vs. UOI & Others decided on 20.11.2001 dealing with the case of Postal employees to whom CGHS facilities were not extended has held that the OM dated 01.08.1996 in respect of Posts & Telegraph Department alone did not come within the purview of reasonable classification and accordingly the same was declared to be violative of Articles 14 and 16 and set aside. Ultimately, the respondents therein were directed to take immediate step for extending the CGHS facility which was given by the Central Government for all its employees irrespective of any Department including that of the Posts and Telegraph Department. The said judgment has been followed and reiterated by the Chandigarh Bench in OA No.955/CH/2003 as well as other Benches of the Tribunal. As the Ministry of Health and Family Welfare OM dated 01.08.1996 was quashed and set aside being violative of Articles 14 and 16 of the Constitution by the Bangalore Bench of the Tribunal, I find no justification in the Respondents action in denying the applicant CGHS facility on the same very ground, which stood concluded. Shri Rajesh Katyal, learned counsel for Respondents 1, 3 and 4 contended that the deceased Government employee had applied for CGHS facility on 23.3.2004, i.e., after he had undergone the emergency Heart Treatment on 23.12.2003. I have considered this aspect too but find no merit in the said contention. Merely because the deceased Govt. employee approached the Respondents for extending CGHS facilities after taking the medical treatment, that itself could not be a ground to reject such a request particularly when the OM under which such facilities were denied stood quashed and set aside by this Tribunal as early as on 20.11.2001. In other words, under the law the said OM dated 01.08.1996, in fact, never existed.

13. Following the ratio laid down under the aforesaid Judgments of the Ahmedabad Bench, Gwalior Bench and Madras Bench of the Tribunal, and which had been upheld by the Honble High Court of Gujarat, I find no justification in the Respondents action in rejecting the claim vide communications dated 17.06.2000 and 06.07.2000. Accordingly, the same are quashed and set aside. The respondents are directed to entertain and consider the medical reimbursement claim of the deceased Govt. employee in the light of Govt. of Indias OM dated 05.06.1998 and reimburse the same within a period of three months from the date of receipt of a copy of this Order. However, in the facts and circumstances of the case, I find no justification to order interest, as prayed for.

11. Learned counsel appearing for applicant on the strength of the aforesaid stated that case of applicant on all fours is covered by the ratio decidendi delivered and as such rejection of his request cannot be legally sustained.

12. On the other hand, learned counsel appearing for respondents vehemently opposed the contentions and stated that as applicant has failed to opt for CGHS facility after retirement and has chosen to claim fixed amount of Rs.100/- as provided under the OM of 1997 and the place where he has been residing is a non-CGHS covered area, being non-CGHS beneficiary OM of 5.6.1998 not being a final order but only an inter-ministerial communication the decision of the competent authority by way of clarification vide OM dated 20.8.2004, where Department of Expenditure due to huge financial implications has not extended CS (MA) Rules, 1944 to the pensioners the claim of applicant has been rightly turned down and he prays for dismissal of the OA.

13. I have carefully considered the rival contentions of the parties and perused the material on record.

14. The Apex Court in Olgatellis v. Bombay Municipal Corporation, [1985] INSC 155; AIR 1986 SC 180, held the right to life as a fundamental right. In the wake of the Fifth Central Pay Commission recommending medical facilities to the retirees, Ministry of Health and Family Welfare vide OM dated 24.9.2001 extended to the Central Government pensioners the medical reimbursement who are residing in non-CGHS areas sought views but has not been finalized. The Apex Court in State of Punjab v. Mohinder Singh Chawla, AIR 1997 SC 1225, made to the Government constitutional obligation to bear the expenses of Government servants even after retirement regarding medical reimbursement.

15. In State of Punjab v. Ram Lubhaya Bagga, JT 1998 (2) SC 136, under the directive principle of State policy and with an underline object of Welfare State approved of the project providing medical facilities to the employees of the Government but financial constraints were recognized.

16. A Full Bench of this Tribunal when pitted with a reference as to applicability of CS (MA) Rules of indoor treatment medical reimbursement to the retired Government officials concluded in reported decision of Ram Dev Singh v. Union of India, ATFBJ (2002-2003) 48, that the CS (MA) Rules are intra vires but directed Central Government to prepare a scheme subject to the resources and availability of medical facilities for indoor treatment of retired Government officials and reimbursement thereof. However, to those retired officials who were enrolled earlier under the CGHS are residing in an area not covered by the CGHS immediate redressal as to reimbursement was ruled out, pending finalization of the Government policy.

17. The Apex Court in K.P. Singh v. Union of India & Ors., 2002 SCC (L&S) 761, when describing the plight of ailing pensioners ruled that being a beneficiary of the scheme reimbursement would be at the rates approved by the CGHS regardless of the fact that in a particular town where there are only private hospitals and no Government hospitals, Union of India has been directed to consider this aspect with issue of directions.

18. The controversy in the present case is admissibility of the claim of the retiree of medical reimbursement whether is to be regulated by OM of 5.6.1998 and also the OM issued by the respondents on 20.8.2004 would retrospectively override the earlier OM when it has neither superseded nor a contrary decision has been taken. Extension of CS (MA) Rules to the pensioners the Government, i.e., Ministry of Health and Family Welfare did not object to the extension of these Rules to the Central Government beneficiaries residing in non-CGHS area but responsibility to operate is bestowed upon CGHS by respective Ministries and Departments. The pensioners have to be given one time option for medical coverage under CGHS or CS (MA) Rules. The Department of Pension and Pensioners Welfare had been requested to take further action. During the interregnum of this OM and the OM issued on 20.8.2004, OM issued on 12.1.1999 sought views of all the Ministries and Departments but no such final decision has been taken in furtherance of OM dated 5.6.1998. What has been clarified vide OM dated 20.8.2004 is that OM of 5.6.1998 was not a final order and a policy decision cannot be taken de hors the approval of the Department of Expenditure, which is due to huge financial implications does not find such a proposal feasible. Accordingly, interpretation of OM dated 5.6.1998 has been clarified not to include within the ambit of CS (MA) Rules, 1944 the pensioners.

19. Before I proceed to go on the legality of the orders issued by the Government in its administrative capacity in the matter of exercise of power by public functionaries the discretion which is available cannot be exercised at the ipsi dixit when it is not in doubt that right to health being an integral part of life and the Government is under Constitutional obligation to provide medical facilities and reimbursement thereof not only to the serving Government officials but retirees as well. This fundamental right though may be subject to reasonable restriction but cannot be denied on irrational considerations and in a non-judicious manner. Financial constraints is a common defence whenever any legitimate claim is preferred for being implemented by a Government servant though the Government has limited resources, yet it does not absolve them from exercising their onerous responsibility and Constitutional obligation to provide facilities, treatment and expenses in case of a retiree who had by dint of hard work was instrumental in progression of Government and its smooth functioning by rendering a step-motherly treatment when Government can reimburse as per the policy decision to the serving Government officials the medical expenses as per AIIMS rates and now as decided by the Apex Court in Suman Rakheja v. State of Haryana, 2004 (13) SCC 563, a differential treatment without any intelligible differentia and without any reasonableness with the object sought to be achieved, cannot be meted out to the pensioners which would be an anti thesis to the principles of equality enshrined under Article 14 of the Constitution of India.

20. In D.S. Nakara v. Union of India, [1982] INSC 103; 1983 SCC (L&S) 145, inequality in treatment of equals has been held to be illegal by the following observations:

13. The other facet of Art. 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi's case in the earliest stages of evolution of the Constitutional law, Art. 14 came to be identified with the doctrine of classification because the view taken was that Art. 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. However, in P. Royappa v. State of Tamil Nadu, it was held that the basic principle which informs both Arts. 14 and 16 is equality and inhibition against discrimination. This Court further observed as under:

"From a positivistic point of view, equality is antithetic to arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute on arch. Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art. 14, and if it affects any matter relating to public employment, it is also violative of Art. 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.

14. Justice Iyer has in his inimitable style dissected Art. 14 in Maneka Gandhi case as under at SCR p.728: (SCC p. 342, para 94)

"That article has a pervasive processual potency and versatile quality, equalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse dixit is the ally of demagogic authoritarianism. Only knight-errants of 'executive excesses'- if we may use current cliche-can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And so it that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law; be you ever so high, the law is above you."

Affirming and explaining this view, the Constitution Bench in Ajay Hasia etc. v. Khalid Mujib Sehravardi & others etc. held that it must, therefore, now be taken to be well settled that what Art.14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Art. 14. After a review of large number of decisions bearing on the subject, in Air India etc. etc. v. Nargesh Meerza & Ors. etc etc. (1) the Court formulated propositions emerging from analysis and examination of earlier decisions. One such proposition held well established is that Art. 14 is certainly attracted where equals are treated differently without any reasonable basis.

15. Thus the fundamental principle is that Art. 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question."

21. In the matter of discretion the public functionaries are supposed to act diligently and in the following manner as held by the Apex Court in Union of India v. Kuldeep Singh, 2004 (2) SCC 590:

Discretion is to know through law what is just. Where a Judge has and exercises a judicial discretion his order is unappealable unless he did so under a mistake of law or fact or in disregard of principle, or after taking into account irrelevant matters. It will help to show this if it can be shown that there were no materials on which he could exercise his discretion in the way he did. Not any one of the reasons attempted to be enumerated by the High Court in this case could in law be viewed as either relevant or reasonable reasons carrying even any resemblance of nexus in adjudging the quantum of punishment in respect of an offence punishable under the Act.

When any thing is left to any person, Judge or magistrate to be done according to his discretion, the law intends it must be done with sound discretion, and according to law. (See Tomlin's Law Dictionary) In its ordinary meaning, the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty of power of acting without other control than one's own judgment. But, when applied to public functionaries, it means a power or right conferred upon them by law, of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. Discretion is to discern between right and wrong; and therefore whoever hath power to act at discretion, is bound by the rule of reason and law. (See Tomlin's Law Dictionary).

Discretion, in general, is the discernment of what is right and proper. It denotes knowledge and prudence, that discernment which enables a person to judge critically of what is correct and proper united with caution; nice discernment, and judgment directed by circumspection; deliberate judgment; soundness of judgment; a science or understanding to discern between falsity and truth, between wrong and right, between shadow and substance, between equity and colorable glosses and pretences, and not to do according to the will and private affections of persons. When it is said that something is to be done within the discretion of the authorities, hat something is to be done according to the rules of reason and justice, not according to private opinion; according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man, competent to the discharge of his office ought to confine himself (Per Lord Halsbury, L.C., in Sharp v. Wakefield, (1891) Appeal Cases 173). Also (See S.G. Jaisinghani v. Union of India and Ors. (AIR 1967 SC 1427).

22. In the mater of administrative decision when the decision is irrational, the Court has come to the conclusion that the decision is so outrageous as in total defiance of logic and moral standards, as held by the Apex Court in State of NCT of Delhi v. Sanjeev, 2005 (5) SCC 181.

23. In the light of the above, what has been decided by the Ministry of Health and Family Welfare, which operates and controls medical treatment and reimbursement to the Government servants, has in principle accepted extension of CS (MA) Rules, 1944 to the Central Government pensioners but on an option the decision to be taken by the Ministries/Departments, the only thing which has been left to the Department of Pension and Pensioners Welfare to take immediate action. The aforesaid decision clearly shows that the Ministry on administrative side having taken a final decision to extend the CS (MA) Rules to the pensioners, the follow up action was to be taken thereafter. This decision during the interregnum on 12.1.1999 has been consulted with all Ministries/Departments but no decision has been taken thereon by them.

24. In my considered view, having decided to extend the provisions of CS (MA) Rules to the Central Government pensioners what is left with the individual Ministry and Department under whom the pensioner concerned had worked earlier to extend an option to be registered to the nearest CGHS city and the claim would be processed by the Additional Director, CGHS of that city and scrutiny of claim under AMAs appointed to be decided by the Ministry. Accordingly, in no manner the decision to extend the CS (MA) Rules would have been objected or dissented to by the Ministries and Departments, as the controlling authority for medical reimbursement and treatment to the pensioners is not individual Ministry but Ministry of Health and Family Welfare.

25. Having done so, now an act of reprobation by the Ministry of Health and Family Welfare whereby a clarification has been issued on 20.8.2004 is in juxtaposition with their earlier decision which has attained finality. The only reason which has come-forth for clarification is that the decision taken in OM dated 5.6.1998 was not final, extending the applicability of CS (MA) Rules to the pensioners. The reason is that the individual Ministry would not take the decision without the consent of the Ministry of Finance, Department of Expenditure and the OM of 1998 being an inter-ministerial communication, an administrative instruction issued by the executive on executive side is a subordinate piece of legislation. When the statutory rules do not cover the field on supplement without conflict, as an addendum the guidelines can be issued. The Medical Rules promulgated by the Government are also not statutory rules promulgated under Article 309 of the Constitution of India and at best are a set of administrative instructions compiled as a subordinate legislation. Accordingly the category of pensioners which is not being covered in an earlier administrative decision has now being on change of decision included within the purview of the Rules which is within the competent of the administrative authority while acting as a public functionary.

26. Insofar as clarificatory OM issued on an administrative side is concerned, if OM of 5.6.1998 is treated by respondents not to be a final order then order issued on 20.8.2004 is also not a decision which had laid down finality to the question of extension of medical facilities to the pensioners under CS (MA) Rules. What has been on executive side issued is a clarification and no whisper in this memorandum is to indicate the same having been issued in supersession of the earlier OM of 5.6.1998. A clarification issued on an administrative side cannot be in conflict with the administrative instructions issued earlier. The Apex Court in Director General of Posts v. B. Ravindran, 1997 (1) SCC 641, held that by a clarificatory order Government cannot take away the right accrued to re-employed pensioners with retrospective effect. Right of consideration for medical reimbursement on being implicitly included in the definition of persons covered the pensioners under CS (MA) Rules would have accorded on reimbursement the medical expenses incurred by them post retirement. This right has now been taken of by the clarification.

27. Moreover, the Apex Court in A.P. Electricity Board v. J.V. Rao, 2003 (1) SCC 116, on an issue of memorandum issued on administrative side reducing the number of vacancies held that once a right is accrued to a Government servant under the administrative order the same cannot be curtailed by a subsequent memorandum.

28. In R.P. Bhardwaj v. Union of India, 2005 (10) SCC 244, an OM issued by Government when is altered on replacement by another OM the same has been held to be illegal by the Apex Court.

29. In this view of the matter, I am of the considered view that a right has accrued to the pensioners of medical reimbursement of medical expenses incurred, as if within the ambit of CS (MA) Rules on their extension bestowed to them vide OM dated 5.6.1998 cannot be abrogated or taken away by a clarificatory memorandum, that too, retrospectively, which is not only ultra vires but also against all canons of compassion, equity and welfare measures. Right to health of a Government servant is a fundamental right, which cannot be taken away by such a memorandum.

30. Another aspect of the matter which requires consideration is this OM of the Government dated 5.6.1998 has been a subject matter of consideration by the Tribunal in several orders, one of which is the decision of the Ahmedabad Bench in Sadashiv B. Marathes case (supra) where the medical reimbursement has been accorded being a right accrued to the pensioners on the basis of OM of 5.6.1998. The aforesaid decision has been affirmed by the Gujarat High Court in CA No.13120/2004 (supra). In another case of in Lakshmi Chand (supra) having reiterated the aforesaid the decision of the Tribunal has been implemented. Now this clarification issued on administrative side is in direct conflict with the judicial orders passed. The arena as to the right of pensioners to be reimbursed the medical expenses under CS (MA) Rules is covered by a judicial order which cannot be infiltrated by an administrative order with a view to make it ineffective, which is not only deprecated but also held to be illegal by the Apex Court in Anil Rattan Sarkar v. State of West Bengal, 2001 (5) SCC 327. A Full Bench of the Tribunal in R. Jambukeswaran v. Union of India, 2004 (2) ATJ CAT 1, held that an administrative order cannot overturn the judicial pronouncement. A constitution Bench of the Apex Court in Pratap Singh v. State of Jharkhand, 2005 (3) SCC 551, ruled that a judicial order cannot be taken away by executive power.

31. In the light of the above, once a right of pensioner to be reimbursed for medical expenses under OM dated 5.6.1998 is recognized as a right on redressal and on attainment of finality cannot be overridden in any manner by an administrative order, which is bad in law and unconstitutional as well.

32. Though the financial constraints as reflected in the clarificatory OM dated 20.8.2004 to deny extension of CS (MA) Rules to the pensioners is justifiable by the Government on the ground that it would incur huge financial implication is a piece of escapism and the power of the State and its fundamental duty as described under directive principles of State policy contained in Articles 39 and 50 of the Constitution of India is also non-fulfillment of the duties. Every fundamental right has attached to it a corresponding duty. The duty of the Government servant is to act in accordance with rules and complete the formalities envisaged which culminates into his right to maintain his health, which inter alia as a procedure includes medical facilities and on incurring it right to be reimbursed as far as medical expenses are concerned. Financial constraints cannot be the sole factor or a reasonable restriction to curtail this fundamental right of health of a pensioner. An integral part of right to life of a Government servant who by dint of his hard work devotes his youth in the service of Government, though as a right receives pensionary benefits, but at the age when he is incapacitated deserves, as a constitutional mandate, medical facilities in case of ailment when a treatment is rendered from the hospital recognized for treatment of Government servant, then depriving the medical expenses incurred would be injustice and inequitable as well. Government in its wisdom has every right to lay down a policy but it on several occasions had not complied with the directions on judicial side to frame a policy and an irrational and illogical attitude to fullest of its callousness is to be presumed. Right to life is not only to be respected but also to be protected. Being a welfare State the Government is concerned with the welfare of its employees and if pensioners are taken care of by several beneficial post retirement allowances being paid to them their claim for reimbursement cannot be treated in isolation. The unreasonableness in the order is apparent on the face of it when Ministry of Health having taken a final decision vide its memorandum dated 5.6.1998 now taken altogether a different stand on reversal are estopped on good conscience and fairness to approbate and reprobate simultaneously.

33. The decision of the Government now not to extend CS (MA) Rules to the pensioners is not reasonable. When serving Government servants are entitled to the medical reimbursement on the treatment incurred denying it to the pensioners I do not find any intelligible differentia or any nexus, insofar as reasonableness is concerned, with the object sought to be achieved. If the object is a constitutional obligation of Government to provide facilities of health, which includes medical reimbursement is an integral part of the fundamental right to life guaranteed under Article 21 of the Constitution of India then decision of Government to deprive it to the pensioners, which is their fundamental right, only on the ground that they cease to be in service when the right to life places both the category on an equal footing, this unequal treatment would not pass by any logic or rationale the twin tests of reasonableness laid down under Article 14 of the Constitution of India and is an unjustifiable piece of administrative exercise of power on executive side, which is not in consonance with the ratio decidendi on Article 14 of the Constitution of India by the constitutional Bench of the Apex Court in D.S. Nakaras case (supra).

34. In the result, for the foregoing reasons, in agreement with the decision of the coordinate Bench and in the light of the discussion made above, I am satisfied that rejection of the claim of applicant, who as a fundamental right to be looked after in the matter of his health and as a consequence thereof to be reimbursed medical expenses incurred to save his life, which has been wrongly denied to him. The OA is accordingly allowed. Respondents are directed to reimburse to applicant full amount of medical claim along with interest at the rate of 6% per annum from the date of submission of the claim till it is actually paid, within a period of two months from the date of receipt of a copy of this order. No costs.

(Shanker Raju)

Member (J)

San.