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TMI Blog2012 (12) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions 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 2005 and an order was passed by the High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 facilities provided to a retired officer of the Central Civil Services, Class-I an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 Government issued a memorandum dated 06.02.2002 which stated that it had been decided in consultation with the Mini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red 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. Leave granted. 11. Some of the former Judges of the Bombay High Court, particularly those who are settled at Aurangabad, moved a representation to the Chief Just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tal 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 with and thereafter the Central Government will reimburse the amount paid by the State Government. We would like the Central Government Counsel and the State Government Counsel to react on this, if at all there are an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judge, who are covered by the draft rules as submitted and which is substantially the same. It is made clear that these Rules will apply to the Judges who were appointed as Judges of this Hon'ble Court and have since retired and are settled in the State of Maharashtra and Goa. 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 charged upon the Consolidated Fund of the State and any fees or other monies taken by the court shall form part of that fund. These are some constitutional provisions which indicate the constitutional protections in the form of legal rights that are available to the judges of the High Court. The Indian Parliament enacted The H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 appeal before this Court that different States have different rules to provide medical facilities to the former judges of their respective High Courts. Article 221 of the Constitution read with the provisions of the Act is indicative of the fact that the framers of the Constitution envisaged parity of such facilities in the States. Variation in grant of medical benefits from one High Court to anoth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 provide for the difference in rates from their own pockets, if they take treatment from other private hospitals. of course, an attempt has been made by the Central Government while introducing a specific clause, being Clause 15 in the conditions of tender, relating to validity of CGHS rates which requires that for the stipulated period, the empanelled institutions shall not charge more than CGHS rates. But the stated difficulty will still ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 socio-economic justice. In this judgment, the court also referred to the observations recorded by Justice V. Krishna Iyer in the case of Union of India v. Sankalchand Himatlal Sheth (1977) 4 SCC 193: "Independence of the Judiciary is not genuflexion; nor is it opposition to every proposition of Government. It is neither Judiciary made to Opposition measure nor Government's pleasure." 28. Besides referring to these remarks, the court with great emphasis noticed the views expressed by Dr. Rajendra Prasad that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 need for securing the independence of judiciary was even greater under our Constitution than it was in England. 32. At this stage, reference to the judgment of this Court in the case of Union of India v. R. Gandhi, President Madras Bar Association [(2010) 11 SCC 1], with reference to independence of judiciary would be proper and, in fact, inevitable. A five-Judge Bench of this Court not only observed but formatively stated: ...impartiality, independence, fairness and reasonableness in decision making are the hallmarks of judiciary. If "Impartial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the State is able to exercise pressure on the Judges of the High Court by providing arbitrary or unreasonable conditions of service or altering them in an arbitrary manner, it would certainly be an act of impinging upon the independence of judiciary. of course, what is put forward as part of the basic structure must be justified by reference to the provisions of the Constitution. When one looks into the scheme of our Constitution and the doctrine of separation of powers, there are many Articles, some of which I have already referred to, which clearly show that independence of the judiciary was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 service of judiciary, they have to be reasonable and free of arbitrariness. Arbitrariness in the power of the State to make unfair conditions of service for the sitting or the former Judges of the High Court would tantamount to putting a kind of pressure on the judiciary, requiring them to run to the Government for every small sickness or for reimbursement of expenditure incurred on some major ailment. The powers vested in the State, as aforenoticed, are not to cause fear or favour or any pressure in the mind of the judiciary, lest the sitting Judges, after retirement, be dependant upon the kindness of the executive. This element of arbitrariness or mercy must be el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for seeking review of the judgment of the High Court. Inter departmental dealing is a matter of internal management of the Government. The Government is represented as a unit before the Courts. How they manage their internal affairs is for them to decide. The High Court rightly held that it was not an error apparent on the face of the record, justifying the review or satisfying the ingredients of Order XLVII Rule 1 of the Code of Civil Procedure, 1908. Substitution of the word 'available' by 'availed of does not bring any prejudice in law. On the contrary, it would be in conformity with the constitutional requirements of equal treatment of all Judges. It is ulti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 expected that the legislative power and more particularly, the subordinate legislative power, ought not to be exercised so as to obtrude these basic fundamental principles. The exercise of subordinate legislative power, which by necessary implication, entrenches upon the independence of judiciary, would have to be decided on the touchstone of it being violative or otherwise, of the basic structure of the Constitution. 41. In order to ensure the absolute independence of judiciary, in the interest of administration of justice and for the Judges to act free of any apprehensive attitude and to provide complete certainty to the service conditions of the former Judges of the High Courts, I dispose of the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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