TMI Blog2012 (12) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... ly are that Section 23D of the High Court Judges (Salaries and Conditions of Service) Act, 1954 (for short the Act ) provides for medical facilities for retired Judges. Sub-section (1) of Section 23D provides that every retired Judge shall be entitled for himself and his family to the same facilities as respects medical treatment and on the same conditions as a retired officer of the Central Civil Services, Class-I and his family, are entitled under any rules and orders of the Central Government for the time being in force. A retired officer of the Central Civil Services, Class-I and his family are entitled to medical facilities under the Central Government Health Scheme (for short the CHGS Scheme ). Justice S.C. Malte and four other retired Judges who after retirement were residing in Aurangabad, Maharashtra, addressed a letter to the Chief Justice of the Bombay High Court mentioning therein the difficulties of the retired Judges in getting the medical facilities under the CGHS Scheme including the fact that the facilities thereunder were provided at only three cities in Maharashtra, namely, Mumbai, Nagpur and Pune. This letter was treated as suo motu Writ Petition No. 6285 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etired Judge of the High Court for a State may avail, for himself and his family, any facilities for medical treatment which the Government of that State may extend to him. 5. It will be clear from language of Sub-section (1) of Section 23D of the Act quoted above that every retired Judge is entitled for himself and his family, to the same facilities as respects medical treatment and on the same conditions as a retired officer of the Central Civil Services, Class-I and his family, are entitled under any rules and orders of the Central Government for the time being in force. Sub-section (2) of Section 23D of the Act, however, provides that notwithstanding anything in Sub-section (1) but subject to such conditions and restrictions as the Central Government may impose a retired Judge of the High Court for a State may avail, for himself and his family, any facilities for medical treatment which the Government of that State may extend to him. Thus, Under Sub-section (2) of Section 23D of the Act, the power is vested in the Government of the State to extend facilities for medical treatment to a retired Judge of the High Court for that State and his family different from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provides that every retired Judge shall be entitled, for himself and his family, to the same Central Civil Services Class-I and his family, are entitled under any rules and orders of the Central Government for the time being in force. The Central Government had made the Supreme Court Judges Rules, 1959 for sitting Judges of the Supreme Court and Rule 5 of these Rules provides for facilities for medical treatment and accommodation in hospitals and the proviso to Rule 5 stated that the medical expenses shall be reimbursed on prescription of government doctors/hospitals or (registered medical) practitioners/private hospitals by the Registry of the Supreme Court of India. This Rule 5, however, did not apply to retired Judges. Justice Kuldip Singh, a retired Judge of the Supreme Court, filed a writ petition praying for a declaration to the effect that the proviso to Rule 5 of the Supreme Court Judges Rules, 1959, should be made applicable to the retired Judges of this Court and that the provisions of Section 23C of the Supreme Court Judges (Salaries and Conditions of Services) Act, 1958, should be struck down. While the writ petition was pending before this Court, the Central Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... heir family members. In Andhra Pradesh, the Government of Andhra Pradesh has extended the medical benefits to the retired Judges of the High Court at par with sitting Judges of the High Court of Andhra Pradesh. In Madhya Pradesh, the Chief Justice of the High Court sanctions the reimbursement of the medical bills of the retired Judges of the High Court pursuant to the orders passed by the State Government. In Uttar Pradesh, the medical facilities to the retired Judges of the Allahabad High Court are the same as those available to the sitting Judges of the High Court. In the light of these provisions regarding medical facilities in other States, the Government of Maharashtra must consider extending better medical facilities to the retired Judges of the Bombay High Court, but what exactly should be the provisions for medical facilities can only be decided by the State Government in exercise of its powers under Sub-section (2) of Section 23D of the Act. 9. In my view, therefore, the impugned orders of the High Court should be set aside and the appeal should be disposed of with the recommendations in this judgment. Swatanter Kumar, J. 10. Leav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Meanwhile, the Hon'ble Retired Judges would be permitted to get medical treatment from any of the hospital mentioned in paragraph 4 on being referred by a Doctor of Government Hospital and obviously their bills shall be reimbursed expeditiously. 13. The Court passed another order dated 23rd June, 2006 laying down the procedure that should be adopted for dealing with the medical bills of the former Judges and directed as under: Neither the State Government nor the Central Government have challenged that order so far. This being the position, now the modalities of actual working will have to be set down. In view of this State of affairs, we propose to pass an order whereby as in the case of the retired Supreme Court Judges as permitted by the Central Government by its office Memorandum dated 06.02.2002, medical bills of the retired High Court judges at Aurangabad will be signed by the Registrar (Administration) and countersigned by the medical officer and then passed by Registrar General. The Officers shall certify the bills whether for indoor treatment or for the purchase of medicines. The bills will be cleared by the State Government to begin w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Secretary and RLA, Law and Judicial Department was present in Court, however, the Secretary, Finance Department was not. The matter was then deliberated before the Court. Thereafter, the suggestion made was acceded to and it was said that they would take concurrence of the Finance Department on the suggested change. The Court, thus, directed the change in the draft Rules, as suggested. The High Court vide its judgment dated 15th January, 2007 recorded that the CGHS was available only in three cities of the State of Maharashtra, i.e., Bombay, Nagpur and Pune. The Court, while noticing the agreed amendment to Rule 2(a), recorded its conclusion and relief as under: The learned Amicus Curiae has gone through the Rules. It is submitted that these Rules will substantially cover the grievances as raised by the Petitioners. Since the power conferred on the State Government is pursuant to Section 23D(2) it will be open to the State Government to either notify the said Rules in the forum which they have now been presented or it is open to the State Government to amend the G.R. which provides for medical benefits to sitting judges and extend the same benefit also to the retired ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is. The Judges of the High Courts of the respective States are appointed under Article 217 of the Constitution of India (for short the Constitution ). Such Judges are appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India and the Governor of the State and they hold office till the age of 62 years subject to the provisions contained in Article 217 of the Constitution. In terms of Article 221 of the Constitution, the Judges of each High Court shall be paid such salaries as may be determined by the Parliament by law and every Judge shall be entitled to such allowances and to such rights in respect of leave of absence and pension as the case may be and as determined from time to time under the law by the Parliament. Proviso to Article 221 of the Constitution categorically states that neither the allowances of a Judge nor his rights in respect of leave of absence shall be varied to his disadvantage after his appointment. 20. Article 229(3) concerns itself with administrative expenses, including salaries, allowances and pensions payable to or in respect of the officers and servants of the court, which shall be charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and his family, any facilities for medical treatment which the Government of that State may extend to him. 21. Section 23D of the Act deals with the medical benefits to which the former Judges of the High Court and their family members would be entitled to. This provision states that they would be entitled to similar medical benefits as may be prescribed through appropriate rules by the State and to the retired Class I Civil Services officers. Sub-section (2) of Section 23D, in fact, is an exception to Section 23D(1) of the Act. The non-obstante clause of Sub-section (2) makes it clear that the legislature intended to provide the medical benefits to the former Judges in terms of the law framed by the State but with restrictions as may be imposed by the Central Government. It provides that notwithstanding anything contained in Sub-section (1), but subject to conditions and restrictions as the Central Government may impose, a retired judge of the High Court for the State may avail for himself and his family, any facility for medical treatment which the Government of that State may extend to him. It cannot be disputed and, in fact, has been noticed in the judgment under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to an outside hospital. In emergencies, one has to comply with the entire procedure of ex-post facto approval, which appears to be in order. 23. The eligibility criteria and the method in which the CGHS can be availed of on paper appear to be sound, but when it comes to practice, things are quite unsatisfactory. Receiving a medicine, availability of drugs, the rush in the hospitals, payment of bills under the CGHS are some of the practical problems that are faced by everyone, of which the Court can even take a judicial notice. Attempts under the Scheme have been made by introducing different aspects like medical audit of hospital bills, holding of claim adalats, establishment of local advisory committees, decentralization and delegation of powers etc., but they ultimately do not serve the purpose of effective and readily available medical facilities to the concerned persons. 24. The Court cannot ignore the harsh reality that the rates stipulated under the CGHS and its approved hospitals are much lower than the prevalent rates for providing such treatments in other hospitals. Thus, the State employees and even the former Judges of the Courts have to provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 27. Another important facet of this statutory right is relatable to the independence of judiciary. I may refer to some judgments of this Court, which have dealt with the independence of judiciary with reference to the Constitution of India. Referring to the functions of the judiciary, this Court in the case of S.P. Gupta v. Union of India (1981) Supp. SCC 87], held: ...what the true function of the judiciary should be in a country like India which is marching along the road to social justice with the banner of democracy and the rule of law, for the principle of independence of the judiciary is not an abstract conception but it is a living faith which must derive its inspiration from the constitutional charter and its nourishment and sustenance from the constitutional values. It is necessary for every Judge to remember constantly and continually that our Constitution is not a non-aligned national charter. The Court further held: the principle of independence of judiciary is the basic feature of the Constitution. It cannot remain content to act merely as an umpire but it must be functionally involved in the goal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rged on the Consolidated Fund of each State and Article 112(3)(d)(iii) enunciates that pensions payable to the High Court Judges are charged on the Consolidated Fund of India. By virtue of Article 113(1) the pensions are not subject to the vote of the Parliament. The court also noticed: Now the independence of the judiciary is a fighting faith of our Constitution. Fearless justice is a cardinal creed of our founding document. It is indeed a part of our ancient tradition which has produced great Judges in the past. In England too, from where we have inherited our present system of administration of justice in its broad and essential features, judicial independence is prized as a basic value and so natural and inevitable it has come to be regarded and so ingrained it has become in the life and thought of the people that it is now almost taken for granted and it would be regarded an act of insanity for anyone to think otherwise. 31. Besides this, the court also noticed that the framers of the Constitution were aware of this constitutional development in England and were conscious of our great tradition of judicial independence and impartiality and they realized that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court in the case of Supreme Court Advocates-on-Record Association v. Union of India [(1993) 4 SCC 441], in unambiguous terms stated: Independence of judiciary has always been recognised as a part of the basic structure of the Constitution. It is a known fact that a large part of the litigation in courts is generated from people being aggrieved against the governance, action and inaction of the Government including the executive and/or its instrumentalities. Thus, the courts must be kept free from any influence that the executive may be able to exercise by its actions, purely executive or even by its power of subordinate legislation. Where this Court refers to independence, fairness and reasonableness in decision-making as the hallmarks of judiciary, there it also states impartiality as one of its essentials. Though, what is most important is the independence of judiciary, its freedom from interference and pressure from other organs of the State. The Courts and Judges, thus, must be provided complete freedom to act, not to do what they like but to do what they are expected to do, legally and constitutionally and what the public at large expects of administration of justice. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... following pertinent observations in the very first two paras regarding Articles 233 to 235 of the Constitution of India: An independent Judiciary is one of the basic features of the Constitution of the Republic. Indian Constitution has zealously guarded independence of Judiciary. Independence of Judiciary is doubtless a basic structure of the Constitution but the said concept of independence has to be confined within the four corners of the Constitution and cannot go beyond the Constitution. XXX XXX XXX [T]he mere fact that Article 309 gives power to the Executive and the Legislature to prescribe the service conditions of the Judiciary, does not mean that the Judiciary should have no say in the matter. It would be against the spirit of the Constitution to deny any role to the Judiciary in that behalf, for theoretically it would not be impossible for the Executive or the Legislature to turn and twist the tail of the Judiciary by using the said power. Such a consequence would be against one of the seminal mandates of the Constitution, namely, to maintain the independence of the Judiciary. 36. When I discuss the conditions of servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istration of justice rather than bringing unreasonableness and arbitrariness in the State action. The Ministry of Health and Family Welfare has issued a circular dated 14th November, 2011 attempting to streamline various aspects of implementation of the CGHS Scheme which itself shows that the scheme suffers from various infirmities and shortcomings and is not proving to be effective. The impact of the circular would have to be seen over a period, to realize its benefits, if any. Even in the circular issued by the same Ministry dated 27th April, 2011, which opens with the words keeping in view the difficulties being faced by the pensioner CGHS beneficiaries residing in non-CGHS covered areas certain clarifications were issued. The basic problem that arises is with regard to the emergency cases, specialized treatments and most concernedly the reimbursement of the bills and the process of verification of such matters. The procedure is so complex and results in such inordinate delays that it becomes difficult for the beneficiaries to continue their treatment faithfully and as advised. 38. Lack of instructions from the Finance Department was pleaded to be the sole ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y would remove another apprehension in the minds of the Judges as to the Court from which they retire. Presently, it is clear even from the various documents submitted and placed on record by the learned Additional Solicitor General that there are different benefits in different States and, thus, the medical benefits at the Centre as well as between the States are comparatively and considerably different. This disparity leads to a patent discrimination which should not be permitted. It will be in the interest of all concerned, including the State Governments, that complete uniformity is maintained in relation to availability of medical facilities in terms of Section 23D of the Act and procedure of reimbursement of medical bills of the former Judges of the High Courts. The Former Judges of the High Courts should be placed at parity with the sitting Judges of the High Courts. Thus, it will be appropriate for the competent authority to frame/amend the rules in accordance with this judgment and the constitutional mandate. 40. Keeping in view the doctrine of separation of powers and independence of judiciary, which are the structural ethos of our Constitution, it is expecte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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