TMI Blog2006 (8) TMI 690X X X X Extracts X X X X X X X X Extracts X X X X ..... medicare for all diseases including serious and terminal diseases, even if treatment for those diseases is not available at Military Hospitals. 2. The case of the petitioner is that there are certain ex-servicemen Associations which have formed a Confederation in furtherance of common cause for welfare of ex-defence personnel. They are; (i) Air Force Association; (ii) India Ex-services League; (iii) Naval Foundation; (iv) Disabled War Veterans (India); and (v) War Widows Association. Aims and objects of the Confederation have been set out in the Memorandum of Understanding (MoU) produced at Annexure P-1. According to the petitioner, there are approximately 15 lakhs ex-servicemen in the country alongwith 45 lakhs dependents and family members. The petitioner has no information regarding medical facilities provided to ex-servicemen prior to the Second World War (1939-44). After the Second World War, however, certain information is available. A book edited by Mr. Bishweshwar Dass was published titled Combined Inter-services : Historical Section : India and Pakistan , wherein it has been stated that the Government had accepted full responsibility for medicare o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also to ex-servicemen. The Commission noted the expenditure incurred on various categories of Central Government employees, and after examining the entire issue, recommended that the Ministry of Defence should embark at once for expansion of medical facilities to ex- servicemen. It suggested creation of ex-servicemen wards in Civil Hospitals in liaison with State Governments. It also recommended Ministry of Health and Family Welfare to set up Veteran's Hospitals where a concentration of civil and military pensioners existed. In addition, it proposed a medical allowance of Rs. 100 per month for ex-servicemen living in rural areas who could not avail themselves of military/civil hospital facilities. 5. According to the petitioner, the Pay Commission missed the basic thrust of the requirement of providing free and full medicare to ex-servicemen. Since the Regulations relating to medical services to Armed Forces expressly excluded the treatment at Government hospitals to ex-servicemen for serious diseases like pulmonary tuberculosis, leprosy and mental diseases, any amount of facilities would not be sufficient to ex- servicemen suffering from such diseases. The Regulations were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to Government employees and also to ex- servicemen. Refusal to extend similar medical benefits to ex-defence personnel is thus arbitrary, discriminatory, unreasonable and violative of Articles 14, 16, 19 and 21 of the Constitution. 7. The petition came up for preliminary hearing before a two Judge Bench on May 10, 1999 and the following order was passed: Issue Rule. Reliance is placed upon paragraph 25 of the decision of a three Judge Bench in Consumer Education and Research center and Ors. v. Union of India and Ors. (1995)IILLJ768SC . Since we are, prima facie, disinclined to accept the correctness of the broad observations in that paragraph, the matter shall be placed before the Bench of five learned Judges. From the above order, it is clear that the two Judge Bench had some doubt about the correctness of wider observations in Consumer Education Research center. The matter was, therefore, ordered to be placed before a Bench of five Judges. By an order dated July 20, 2004, however, a three Judge Bench, relying on a decision rendered by the Constitution Bench of this Court in Pradip Chandra Parija and Ors. v. Pramod Chandra Patnaik and Ors. [2002]254ITR99(SC) observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding Military hospitals, it was stated by the deponent that such hospitals are essentially meant for treatment of in-service defence personnel for whom it is a service requirement to ensure defence preparedness. Ex-servicemen are provided in-patient treatment in Military Hospitals, subject to the availability of beds within the authorized strength and without detriment to the needs of in-service defence personnel. It was, however, conceded that the scheme did not cover treatment for pulmonary tuberculosis, leprosy, mental diseases or malignant diseases. 9. As to discrimination, it was stated that the case of ex-servicemen cannot be compared with retired Civilian Central Government employees inasmuch as medical facilities under Central Government Health Scheme ('CGHS' for short) are contributory i.e., a retired Central Government servant who is a member of CGHS before retirement has option to continue to be covered by the said scheme. The petitioners, therefore, cannot claim similar benefits since they are not similarly situated. Regarding in-service defence personnel, it was stated that the case of the petitioners cannot be compared with in-service defence personnel as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In such matters, expenses would be immaterial. But even if the said fact is relevant and considered material, it is a negligible amount compared to the services rendered by them. The impugned action, therefore, is arbitrary, discriminatory, unreasonable and violative of fundamental rights conferred by the Constitution. It was also urged that several Committees, Commissions and Expert Bodies considered the plight of ex-servicemen. Various suggestions were made and recommendations were forwarded to the respondents but no adequate steps have been taken by them. The doctrine of 'legitimate expectation' was also pressed in service contending that most of the defence personnel had to retire at a premature age either because of injuries sustained or occupational diseases suffered by them. It is, therefore, the right of ex-servicemen to get adequate free and full medical treatment. Apart from fundamental rights guaranteed by Part III of the Constitution, it is the duty of the respondents to implement Directive Principles of State Policy under Part IV of the Constitution. 12. The counsel submitted that serious and terminal diseases cannot be excluded from the category of medica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that free medical service to all its employees in- service or out-of service is never held to be a fundamental right guaranteed by the Constitution and even if there are some observations to that effect, they are either 'obiter dicta' or 'passing observations' and do not lay down correct law. Every State has limited financial means and resources. And keeping in view financial capacity and available means, it has to undertake its obligations of providing social services including medical facilities to its employees in- service or retired. So far as ex-servicemen are concerned, the counsel submitted that recommendations and suggestions of various Committees were considered by the Union of India and more and more benefits had been extended from time to time. Regarding medical facilities in serious and terminal diseases, it was submitted that in past, such facilities were either not available at Military hospitals/clinics or there were no sufficient number of hospitals/clinics and hence they could not be provided to ex-servicemen. The position was thereafter substantially changed. In several hospitals/clinics now such facilities are available. It was also stated that f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e similarly registered individually. It is further stated that Air Force Association and Indian Ex-Services League are even recognized by the Ministry of Defence, Union of India. It, therefore, cannot be said that the petitioner- Confederation is not registered and the petition filed is not maintainable. In view of the fact that some of the Associations have been recognized even by the Ministry of Defence, the deponent ought not to have raised the objection regarding maintainability of the petition without ascertaining full facts and particulars. We leave the matter there holding the petition maintainable. 15. We are also satisfied that the contention of the respondent is even otherwise not tenable at law. A similar point came up before a Constitution Bench of this Court in the well known decision in D.S. Nakara v. Union of India (1983)ILLJ104SC . There also, one of the petitioners was a Society registered under the Societies' Registration Act, 1860. It approached this Court for ventilating grievances of a large number of old and infirm retirees who were individually unable to approach a court of law for redressal of their grievances. This Court held locus standi of the Soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prohibit a person or class of persons from being singled out from others situated similarly. It thus prohibits discrimination or class legislation. It, however, does not prohibit classification if otherwise it is legal, valid and reasonable. 17. Before more than five decades, a Constitution Bench of this Court was called upon to consider a similar contention in the well known decision in State of West Bengal v. Anwar Ali Sarkar and Anr. 1952CriLJ510 . In that case, validity of certain provisions of the West Bengal Special Courts Act, 1950 was challenged on the ground that they were discriminatory and violative of Article 14 of the Constitution. Dealing with the contention, S.R. Das, J. (as His Lordship then was), made the following pertinent observations which were cited with approval in several cases; It is now well established that while Article 14 is designed to prevent a person or class of persons from being singled out from others similarly situated for the purpose of being specially subjected to discriminating and hostile legislation, it does not insist on an abstract symmetry in the sense that every piece of legislation must have universal application. All persons a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rouped together from others left out of the group and (ii) that that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. (emphasis supplied) 19. The principle laid down in Anwar Ali Sarkar and Budhan Choudhry has been consistently followed and reiterated by this Court in several subsequent cases. [See Bidi Supply Co. v. Union of India and Ors. [1956]29ITR717(SC) ; Ram Krishna Dalmia v. Justice Tendolkar [1959]1SCR279 ; V.C. Shukla v. State (Delhi Administration) 1980CriLJ965 ; Special Courts Bill, Re [1979]2SCR476 ; R.K. Garg v. Union of India [1982]133ITR239(SC) ; State of A.P. and Ors. v. Nallamilli Rami Reddi and Ors. AIR2001SC3616 ; M.P. Rural Agriculture Extension Officers Association v. State of M.P. and Anr. (2004)IILLJ1114SC ]. 20. In our judgment, therefore, it is clear that every classification to be legal, valid and permissible, must fulfill the twin- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s taken by an administrative authority adversely affecting his interests, he may have justifiable grievance in the light of the fact of continuous receipt of the benefit, legitimate expectation to receive the benefit or privilege which he has enjoyed all throughout. Such expectation may arise either from the express promise or from consistent practice which the applicant may reasonably expect to continue. 22. The expression 'legitimate expectation' appears to have been originated by Lord Denning, M.R. in the leading decision of Schmidt v. Secretary of State (1969) 1 All ER 904 : (1969) 2 WLR 337 : (1969) 2 Ch D 149. In Attorney General of Hong Kong v. Ng Yuen Shiu (1983) 2 All ER 346 : (1983) 2 AC 629 Lord Fraser referring to Schmidt stated; The expectations may be based on some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in a way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry. (emphasis supplied) In such cases, therefore, the Court may not insist an administrative authority to act judicially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id down by the Supreme Court in the above cases does not apply and no directions need be issued to the respondents. 25. At the same time, however, so far as the services provided by the defence personnel is concerned, there can be no two opinions that they have rendered extremely useful and indispensable services which can neither be ignored nor under-estimated. The petitioners have rightly stated that they have served in the Army, Air Force and Navy of the Union of India during cream period of youth putting their lives to high risk and improbabilities. As a mark of respect and gratitude, therefore, they must be provided medical services after retirement. It is indeed true that men and women in uniform are the pride of the nation and protectors of the country. It is because of their eternal vigil that ordinary citizens are able to sleep peacefully every night, for it is these men and women guarding the frontiers of our nation that makes our interiors safe. They, therefore, are entitled to privileged treatment. It would be appropriate to quote here an epitaph from the Kohima War Cemetery which conveys eloquently what our Soldiers, Sailors and Airmen are cheerfully willing to sacr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a youthful profile due to the arduous nature of their duties in hazardous and inhospitable terrain. It stated that, almost all ex-servicemen, whose retirement age depending on rank, vary from 35 to 54 years, require help and assistance for resettlement, rehabilitation and adjustment in the civil stream. They require a second career as they are comparatively young and active and their responsibilities and obligations are at the peak when they are compulsorily retired. Having given the best years of their lives for the safety, honour and integrity of the country, it becomes a national obligation to get them resettled and rehabilitated. The Committee noted that the problems of ex-servicemen had, for a long time, been engaging the attention of both the Houses of Parliament as well as the Government and a cause of concern to Prime Minister Smt. Indira Gandhi who had a special love and affection for the Armed Forces. Keeping in view the magnitude of the problem, the High Level Committee had been set up for the first time after independence to go into various problems of ex- servicemen. The Committee was also mindful that defence and national development were, to a great extent, interdep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without detriment to the needs of serving personnel. (c) That the treatment will be limited to the facilities locally available. (d) No conveyance will be provided for journeys from the residence to the hospital and back; and (e) No special nursing would be admissible. It is specifically laid down in this Government letter that the above concessions will not include treatment for pulmonary tuberculosis, leprosy, mental diseases, malignant diseases or any other disease for which treatment is not ordinarily available from the local military sources. 12.11 Liberalisation Proposals : due to the increased awareness and phenomenal increase in the number of ex-servicemen at the rate of 60,000 per annum, more and more ex- servicemen are now coming to Service hospitals for treatment. To meet the requirement of giving adequate treatment to the ex-servicemen reporting at the Service hospitals, the following additional facilities need to be provided: (a) Sanction of 1155 beds exclusively for the ex- servicemen pensioners and entitled dependents. (b) To treat ex-servicemen as out-patients and in-patients, additional staff would also be required as under: 12.12 Civil Hos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and their families who reside in the area where Armed Forces hospitals/clinics are not available. Other facilities were also extended to them. It was stated that in respect of serious diseases i.e. diseases affecting heart - angiography, open heart surgery, valve replacement, pacemaker implant, bypass surgery and repeat angioplasty, cancer, etc. facilities are now available. Substantial financial assistance is provided to ex- servicemen and their dependents for treatment in several hospitals for bypass surgery (including preliminary tests like angiography, angioplasty, angiography), kidney/renal transplantation, cancer/spastic paraplegic treatment, coronary artery surgery, open heart surgery, valve replacement and pacemaker implant. 31. We have been taken through the contributory scheme of 2002. It substantially covers extensive medical facilities to be provided to ex-servicemen. A communication dated December 30, 2002 by Government of India, Ministry of Defence to the Chief of Army Staff, Navy Staff and Air Staff states that Government has sanctioned Ex-Servicemen Contributory Health Scheme (ECHS). The communication inter alia states as under: (a) ECHS would be a contrib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t necessary to deal with all those cases. We may, however, consider some of them which are relevant. Strong reliance was placed on a decision of three Judge Bench in Consumer Education Research center. In that case, the Court dealt with the problem of occupational health hazards and diseases sustained by the workmen employed in asbestos industries. The Court observed that the dangers and diseases attributable to personnel working in asbestos industries were very serious apart from cancer and respiratory disorders. It was held that right to health and medical aid of workers during service and thereafter, is a fundamental right of workers. According to this Court, it can issue directions in an appropriate case to the State or its instrumentalities or even private employers to make the right to life meaningful and to pay compensation to affected workmen. It also held that the defence of 'sovereign immunity' would not be available to the State or its instrumentalities where fundamental rights are sought to be enforced. Relying on several previous judgments, this Court held that right to life would mean meaningful and real right to life. It would include right to livelihood, b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... These are the minimum requirements which must exist in order to enable a person to live with human dignity and no State neither the Central Government nor any State Government-has the right to take any action which will deprive a person of the enjoyment of these basic essentials. Since the Directive Principles of State Policy contained in Clauses (e) and (f) of Article 39, Article 41 and 42 are not enforceable in a court of law, it may not be possible to compel the State through the judicial process to make provision by statutory enactment or executive fiat for ensuring these basic essentials which go to make up a life of human dignity but where legislation is already enacted by the State providing these basic requirements to the workmen and thus investing their right to live with basic human dignity, with concrete reality and content, the State can certainly be obligated to ensure observance of such legislation for inaction on the part of the State in securing implementation of such legislation would amount to denial of the right to live with human dignity enshrined in Article 21, more so in the context of Article 256 which provides that the executive power of every State shall b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhyam khalu dharma shadhanam (healthy body is the very foundation of all human activities), the Court observed that- ...maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore, is of high priority--perhaps the one at the top. 37. In National Textile Workers' Union v. P.R. Ramakrishnan (1983)ILLJ45SC , placing emphasis on needs of changing society and liberal construction of laws conferring benefits on weaker classes, Bhagwati J. (as His Lordship then was) said; We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand alongwith the tree, it will either choke the tree or if it is a living, tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul communicates with the outer world... by the term liberty, as used in the provision something more is meant than mere freedom from physical restraint or the bonds of a prison. (emphasis supplied) 38. The above observations have been quoted with approval by this Court in Kharak Singh v. State of U.P. : 1963CriLJ329 . A similar view thereafter has also been taken in several cases, viz., Prithi Pal Singh v. Union of India 1983CriLJ647 ; A.K. Roy v. Union of India : 1982CriLJ340 ; Olga Tellis v. Bombay Municipal Corporation : AIR1986SC180 ; State of H.P. v. Umed Ram Sharma [1986]1SCR251 ; Prabhakaran v. State of Tamil Nadu : [1988]1SCR1 ; A.R. Antulay v. R.S. Nayak 1988CriLJ1661 ; Vikram Deo Singh v. State of Bihar : AIR1988SC1782 ; Parmanand Katara v. Union of India 1990CriLJ671 ; Kishan Pattnayak v. State of Orissa [1989]1SCR57 ; Shantistar Builders v. Narayan AIR1990SC630 ; Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P. [1990]3SCR739 ; Charan Lal Sahu v. Union of India AIR1990SC1480 ; Delhi Transport Corporation v. Delhi Transport Corporation Mazdoor Congress (1991)ILLJ395SC ; Kapila Hingorani v. State of Bihar (2003)IIILLJ31SC ; District Registrar a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 it is 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 contribution' of reasonable amount (ranging from Rs. 1,800/- to Rs. 18,000/-). To us, this cannot be held illegal, unlawful, arbitrary or otherwise unreasonable. 41. Observations made by this Court in the cases relied upon by the petitioner and intervenors including Consumer Education Research center referred to earlier, must be read as limited to the facts before the court and should not be understood to have laid down a proposition of law having universal or general application irrespective of factual situation before the Court. To us, the policy decision in formulating Contributory Scheme for ex-servicemen is in accordance with the provisions of the Constitution and also in consonance with the law laid down by this Court. We see no infirmity therein. We, therefore, hold that getting free and full medical facilities is not a part of fundamental right of ex-servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... January, 1996. It is evident that this class of ex-servicemen is a diminishing category. The Government of India, Ministry of Defence, shall consider, without it being treated as a precedent, the question of granting the waiver of contribution required to be made under the E.C.H.S. by the ex- servicemen of the category with which we are concerned, i.e., those who have retired prior to 1st January, 1996, having regard to the contribution that may have been made by them in the service of the nation and particularly considering that they, while in service, were not making any payment so as to enjoy the benefit of medical care. Alternatively, the Government can also consider making payment on behalf of those who may be interested in availing the benefits under the E.C.H.S. In case of any difficulty in granting this one-time concession, the Government shall file an affidavit within a period of four weeks, placing on record the approximate amount which may have to be waived or contributed by the Government on behalf of such category of ex-servicemen. Further, if the Government decides to waive it or pay it, without it being treated as a precedent, in that event, the amount may not be inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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