of Ex-Servicemen Associations & Ors Vs. Union
Of India & Ors  Insc 513 (22 August 2006)
Y.K. Sabharwal,K.G. Balakrishnan,S.H. Kapadia,C.K. Thakker P.K. Balasubramanyan
C.K. Thakker, J.
petition under Article 32 of the Constitution is filed as Public Interest
Litigation (PIL) by petitioner- Confederation of ex-serviceman Associations for
an appropriate writ directing the respondent-Union of India to recognize the
right of full and free medicare of ex- servicemen, their families and
dependents treating such right as one of the fundamental rights guaranteed
under the Constitution of India. A prayer is also made to direct the
respondents to take necessary steps to ensure that full and free medicare is
provided to ex-servicemen, their families and dependents on par with in-service
defence personnel. A further prayer is also made to extend such medicare for
all diseases including serious and terminal diseases, even if treatment for
those diseases is not available at Military Hospitals.
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
India Ex-services League;
Veterans (India); and
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 of disabled ex-servicemen as also for
which were categorized, were as follows:
Loss of limb or
use of limb;
and surgical disability;
Loss of speech;
material impairment of vision;
petitioner further stated that in 1962, more medical facilities were provided
to ex-army personnel. In 1983, regulations were framed known as Regulations for
Medical Services of Armed Forces which restricted entitlement to disability for
which pension had been granted. No treatment was authorized for serious
diseases, like pulmonary tuberculosis, leprosy and mental diseases even if such
diseases were attributable to Army Services if treatment of such diseases was not
ordinarily available from service sources.
to the petitioner, various Committees were constituted to examine the issue as
to availability of medical facilities to members of Armed Forces. In 1984, a
High Level Committee headed by the then Rajya Raksha Mantri Shri K.P. Singh Deo
was set up which conducted thorough study of the problems of ex-defence
personnel for the first time. The Committee recommended enhancement of
facilities and improvement of medical services to ex-servicemen.
1986 and 1990, several steps had been taken in the direction of extending more
benefits to ex-servicemen through various committees and commissions, such as, Dharni
Committee (1986), CDM Study Report (1987), Report on Army Logistics Philosophy
(1987), Verma Committee (1988), Narsimhan Committee (1990), Vijay Singh
Committee (1990), etc. In 1993, Lt. Gen. N. Foley Committee again examined the
problem of medicare to ex-servicemen. It noted with concern the manner in which
ex-servicemen had been treated in providing medical facilities which were
shocking. It observed that ex-servicemen were virtually neglected by the
Government. It felt that there was a feeling of frustration in ex-servicemen.
It, therefore, suggested that there should be no discrimination of treatment
between in- service personnel and ex-servicemen. The Committee made certain
recommendations both on long term basis as well as on short term basis. Again,
the Fifth Pay Commission examined the medical and other facilities to
pensioners of the Central Government employees and 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.
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 also silent about modern serious and terminal diseases like AIDS,
Cancer, etc. and no provision was made for expenses on essential treatments
like bypass surgery, laparoscopy, endoscopy, etc.
petitioner has also stated that after 1997, various efforts were made by the
member-Associations to get more benefits to ex-servicemen. On June 12, 1997, Air Marshal D.S. Sabhikhi, Senior
Vice President of Air Force Association submitted a detailed representation to
the Defence Ministry requesting to take action on war footing for setting up
Veteran's Hospitals, augmentation of Special Medical Inspection Rooms (MIRs),
Dental Centres, etc., for ex-servicemen. Brig. Dal Singh (Retd.), President of
Indian Ex-services League also wrote a letter to the Defence Secretary
requesting him to intimate the actions taken by the authorities on various
judgments of this Court. Similar representation was made by Vice Admiral S.K. Chand
(Retd.), President of Navy Foundation, Delhi. Attention of the Government was invited by political leaders and
reference was made to letters of Shri B.K. Gadhvi, Member of Lok Sabha to the Defence
Minister as also by Shri Jaswant Singh, another M.P. The petitioner has
referred to letters by Air Chief Marshal S.K. Kaul (Retd.) in 1997-98 and by
Air Marshal D.S. Sabhikhi, Senior Vice President of Air Force Association.
grievance of the petitioner is that though several attempts had been made by
the Associations, the Government of India had never taken the matter seriously
as regards the medical services to be provided to ex-servicemen. Though they
have a valuable right of full and free medicare, which is a fundamental right,
no concrete and effective steps had been taken by the respondents which
constrained them to approach this Court by invoking Article 32 of the
to them, keeping in view the services rendered by ex-defence personnel and the
diseases sustained by them, they are entitled to necessary medical facilities.
It was also their case that free and full medical facilities is part and parcel
of their fundamental rights guaranteed by Part III of the Constitution as also
covered by Directive Principles in Part IV of the Constitution. In several
cases, this Court has held that such facilities must be provided to Government
employees, past and present. According to the petitioner, such facilities are
provided 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
petition came up for preliminary hearing before a two Judge Bench on May 10, 1999 and the following order was passed:
is placed upon paragraph 25 of the decision of a three Judge Bench in Consumer
Education and Research Centre and Ors. v. Union
of India and Ors. (1995) 3 SCC 42.
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 Centre.
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 & Ors. v. Pramod Chandra Patnaik & Ors.,
(2002) 1 SCC 1 observed that initially the matter was required to be heard by a
Bench of three Judges.
the matter was ordered to be set down for hearing before a three-Judge Bench.
On November 22, 2005, a three Judge Bench perused the
earlier orders, heard the learned counsel for the parties for some time and the
issue involved and was satisfied that the writ petition was required to be
heard by a Bench of five Judges. Accordingly, an order was passed directing the
Registry to place the papers before Hon'ble the Chief Justice for necessary
action. That is how, the matter is placed for hearing before us.
counter affidavit by Mr. V.K. Jain, Under Secretary, Ministry of Defence on
behalf of Union of India was filed on January 24, 2002, raising inter alia, preliminary
objection as to maintainability of writ petition as also objections on merits.
A technical objection was raised by the respondents that the petition was not
maintainable as the petitioner-Associations were not registered associations
and, therefore, had no locus standi. On Merits, it was submitted that
ex-servicemen were provided Assured In-patient and Out-patient Treatment as
specified in the Regulations of 1983 within the available resources of the
State. According to the Union, full and free medical aid for
ex-servicemen cannot be claimed as a matter of right. It has never been claimed
for more than fifty years of independence. Ex- servicemen and their dependents
are entitled to medical treatment in Military Hospitals. They are also given
financial assistance from the Group Insurance Scheme and from the Armed Forces
Flag Day Fund for treatment outside Military hospitals. On the recommendations
of Fifth Pay Commission, the Government had sanctioned fixed medical allowance
of Rs.100 per month to those ex- servicemen and their families who reside in
the areas where facilities of Armed Forces hospitals/clinics are not available.
Over and above those facilities, other facilities were also provided, such as
Mobile Medical Teams, Medical Vans, Army Group Insurance Medical Benefit
Scheme, Army Dialysis Centres, etc. It was then stated that the Government had
extended certain medical amenities to ex-servicemen and their dependents within
the available sources. Ex-servicemen and their family members are given free
out-patient treatment in nearest Military Hospitals and are also given medicines.
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.
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.
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
in-service defence personnel, it was stated that the case of the petitioners
cannot be compared with in-service defence personnel as they are different,
distinct, independent and form different class. It was, therefore, submitted
that the grievance of the petitioner is not well founded and they are not
entitled to the reliefs claimed.
rejoinder affidavit on behalf of the petitioner was filed to the affidavit in
reply controverting the facts stated and averments made in the counter
affidavit, reiterating the assertions in the petition. In addition, it was
stated that on September 13, 1999, Assistant Chief of Personnel (P&C) of
the Indian Navy had informed the then President of the Confederation that the
Committee had been constituted under the direction of the Defence Minister to
look into the problems of medicare of ex- servicemen. Similar information was
also communicated by the Under Secretary of Ministry of Defence vide letter
dated September 20,
1999 and yet nothing
was stated on that point by the Union of India in the counter affidavit already
On July 20, 2004, this Court granted I.As. of All
India Defence Services Advocates Association and All India Ex-Services Welfare
Association seeking impleadment to the limited extent of addressing the court
to raise such points not covered by the submissions of the learned counsel for
also stated at the Bar that during the pendency of the writ petition, the
Government of India had introduced a scheme known as "Ex-Servicemen
Contributory Health Scheme" (ECHS) partly taking care of grievances raised
by the petitioner and intervenors.
respondents sought time to place the scheme on record within four weeks.
Accordingly, by an additional affidavit dated October 4, 2004, ECHS has been placed on record by the respondents. The
scheme is a contributory scheme for ex-servicemen and extends certain benefits
to ex-servicemen on payment of contribution.
have heard learned counsel for the petitioner, intervenors and for the
learned counsel for the petitioner and intervenors submitted that considering
the hard and arduous nature of work performed by defence personnel and taking
into account the exigencies of service, it was obligatory on the respondents to
provide free and full medical facilities to them even after retirement. It was
submitted that such facilities are provided to defence personnel who are in
service. They are also extended to civilians, even after retirement. 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.
counsel submitted that serious and terminal diseases cannot be excluded from
the category of medical services to be provided to ex-servicemen. It was stated
that in past, there were no sufficient number of Military hospitals/clinics.
Due to inadequate infrastructure, paucity of staff, availability of sufficient
means and other considerations, it was not possible for the respondents to
provide medical facilities for serious diseases but in 21st century, when
Medical Science has much developed and huge infrastructure is available, there
is no earthly reason to deprive ex-servicemen from getting medical treatment
for those diseases.
finally submitted that no doubt, recently a scheme has been framed under which
medical facilities have been ensured to ex-servicemen. But they are required to
pay contribution since the scheme is 'contributory health scheme'. To that
extent, therefore, the scheme is objectionable and is violative of fundamental
rights of ex-servicemen. It is also inconsistent with and contrary to various
decisions of this Court wherein it has been held that to get free medical
service is a fundamental right of citizens. On all these grounds, it was
submitted that the petition deserves to be allowed by issuing appropriate
directions to the respondents to provide full and free medical facilities to ex
defence personnel and their family members.
learned counsel for the Union of India, on the other hand, submitted that the
action of the Government cannot be held arbitrary, unlawful or otherwise
unreasonable. He conceded that valuable services have been rendered by retired
army-men when they were in service. But submitted that the State after taking
into account all relevant aspects, formulated a policy for providing medical
facilities to its employees as also to ex- employees. According to the counsel,
defence personnel and civil personnel cannot be compared as they belong to
different class. Article 14, therefore, has no application. Likewise, defence
personnel in-service and defence personnel out of service, i.e. who have
retired, cannot be placed in the same category and if different standards are
fixed for providing medical facilities to defence personnel in service on one
hand and to retired defence personnel on the other, it cannot be said that the
State has acted arbitrarily or practised discrimination between the two classes
who are not similar and do not stand on the same footing. It was submitted by
the respondents 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 financial assistance is
being given to ex-servicemen in certain cases. In 2002, the Government has prepared
ECHS for full medical services. True it is that the scheme is contributory. But
considering the amount of contribution which is 'one time payment' and is
really negligible, it cannot be contended that the action is arbitrary,
irrational or in the nature of deprivation of ex- servicemen from getting
necessary medical services. If ex-servicemen intend to take benefit of the
scheme, they may exercise option, may become members and may avail benefits thereunder
by paying contribution on the basis of the amount of pension received by them.
In that case, they would not be entitled to financial assistance given to them.
If they are not willing to be members of the scheme, it is not necessary for
them to pay the amount of contribution but they would not be entitled to
medical benefits under the scheme. It was also stated that this is to a limited
class of employees who have retired prior to January 1, 1996 as thereafter, the scheme has been
made applicable and contribution has been charged from all the employees. It
was, therefore, submitted that no case can be said to have been made out by the
petitioner so as to hold the action of the respondents unlawful or otherwise
unreasonable and the petition deserves to be dismissed.
have given anxious and thoughtful consideration to the rival contentions raised
by the parties. So far as the preliminary objection regarding maintainability
of the petition is concerned, it may be stated that the petitioner has asserted
in the petition that it is a Confederation of five ex-servicemen Associations
formed in furtherance of common cause.
aims and objects of the Confederation have also been annexed as set out in the MoU
(Annexure 'P-1'). In the affidavit in reply filed by the Under Secretary
working with the Ministry of Defence, it was stated that he is 'not aware' of
the existence of the petitioner organization. He, however, stated that the
organization 'does not seem' to be registered body to represent the cause of
ex- servicemen. The rejoinder affidavit unequivocally states that the objection
raised by the Union of India is incorrect. The Confederation was registered
under the Societies' Registration Act, 1860. Likewise, all Associations which
constitute the Confederation are 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
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)
1 SCC 305. 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 Society 'unquestionable'. In the present case, apart
from the fact that a larger public issue and cause is involved, even
individually, all Associations are registered Associations of ex- servicemen.
The petitioner-Confederation representing those Associations which is also registered,
can certainly approach this Court by invoking the provisions of Part III of the
Constitution. We, therefore, reject the preliminary objection raised by the
respondents and hold that the petitioner-Confederation has locus standi to file
view, however, maintainability of petition and justiciability of issues raised
therein are two different, distinct and independent matters and one cannot be
mixed or inter-linked with the other.
strenuously contended that when in-service defence personnel have been provided
full and free medical services, refusal to extend similar facilities and
benefits to ex-servicemen would result in discriminatory treatment, violative
of Article 14 of the Constitution. It was also urged that members of civil
services have been provided all medical facilities, irrespective of the fact
whether they are in service or have retired. In the submission of the counsel,
if in-service defence personnel have been provided full and free medical
services, the same benefit should be extended to retired defence personnel.
Likewise, when employees from civil services have right to get full and free
medical facilities, the same yardstick must be applied to retired defence
personnel as well. Retired civil servants and retired defence personnel stand
on one and the same footing.
relief in favour of one class and denying same or similar relief in favour of
another class would result in unequal treatments to equals and would infringe
Article 14 of the Constitution. The action of the respondents, therefore,
deserves interference by this Court.
unable to uphold the argument advanced by the petitioners for more than one
reason. It is no doubt true, that Article 14 guarantees equality before the law
and confers equal protection of laws. It clearly prohibits the State from
denying persons or class of persons equal treatment provided they are equals
and are similarly situated. In our opinion, however, the basis on which the
argument proceeds is fallacious and ill- founded. It is well established that
Article 14 seeks to prevent or 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.
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 & Another, (1952 SCR 284 : AIR 1952 SC 75). 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;
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 are not, by nature, attainment or circumstances, equal and the varying
needs of different classes of persons often require separate treatment and,
therefore, the protecting clause has been construed as a guarantee against
discrimination amongst equals only and not as taking away from the State the
power to classify persons for the purpose of legislation. This classification
may be on different bases. It may be geographical or according to objects or
occupations or the like Mere classification, however, is not enough to get over
the inhibition of the Article. The classification must not be arbitrary but
must be rational, that is to say, it must not only be based on some qualities
or characteristics which are to be found in all the persons grouped together
and not in others who are left out but those qualities or characteristics must
have a reasonable relation to the object of the legislation. In order to pass
the test, two conditions must be fulfilled, namely, that the classification
must be founded on an intelligible differentia which distinguishes those that
are grouped together from others and that that differentia must have a rational
relation to the object sought to be achieved by the Act.
differentia which is the basis of the classification and the object of the Act
are distinct things and what is necessary is that there must be a nexus between
them. In short, while the Article forbids class legislation in the sense of
making improper discrimination by conferring privileges or imposing liabilities
upon persons arbitrarily selected out of a large number of other persons
similarly situated in relation to the privileges sought to be conferred or the
liability proposed to be imposed, it does not forbid classification for the
purpose of legislation, provided such classification is not arbitrary in the
sense I have just explained." (emphasis supplied) Again, in Budhan Choudhry
v. State of Bihar, [(1955) 1 SCR 1045 : AIR 1955 SC
191], after considering earlier decisions, this Court stated;
is now well-established that while article 14 forbids class legislation, it
does not forbid reasonable classification for the purposes of legislation. In
order, however, to pass the test of permissible classification two conditions
must be fulfilled, namely,
classification must be founded on an intelligible differential which
distinguishes persons or things that are grouped together from others left out
of the group and
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) The principle laid down in Anwar Ali Sarkar and Budhan Choudhry has
been consistently followed and reiterated by this Court in several subsequent
Supply Co. v. Union of India & Ors., 1956 SCR 267 :
AIR 1956 SC 479; Ram Krishna Dalmia v. Justice Tendolkar, 1959
SCR 279 : AIR 1958 SC 538; V.C. Shukla v. State (Delhi Administration); 1980 Supp. SCC 249 : AIR 1980 SC 1382;
Special Courts Bill, Re, (1979) 1 SCC 380 : AIR 1979 SC 478 : (1979) 2 SCR 476;
R.K. Garg v. Union of India, (1981) 4 SCC 675 : AIR 1981 SC 2138; State of A.P. & Ors. v. Nallamilli Rami Reddi & Ors.,
(2001) 7 SCC 708 : AIR 2001 SC 3616; M.P. Rural Agriculture Extension Officers
Association v. State of M.P. & Anr., (2004) 4 SCC 646 : AIR 2004 SC 2020].
judgment, therefore, it is clear that every classification to be legal, valid
and permissible, must fulfill the twin-test, namely;
classification must be founded on an intelligible differentia which must
distinguish persons or things that are grouped together from others leaving out
or left out; and
differentia must have rational nexus to the object sought to be achieved by the
statute or legislation in question.
considered opinion, classification between in-service employees and retirees is
legal, valid and reasonable classification and if certain benefits are provided
to in-service employees and those benefits have not been extended to retired
employees, it cannot be successfully contended that there is discrimination
which is hit by Article 14 of the Constitution. To us, two categories of
employees are different. They form different classes and cannot be said to be
is, therefore, no violation of Article 14 if they are treated differently.
a classification between defence personnel and other than defence personnel is
also reasonable and valid classification. Moreover, it is clarified by the
respondents in the counter-affidavit that for medical facilities provided to
retired civil servants, there is also a scheme known as the Central Government
Health Scheme (CGHS), which is again contributory.
Central Government Servants who are members of the scheme are covered by the
said scheme and they are provided medical services on payment of specified
amount under the scheme. We, therefore, see no substance in the argument of the
petitioners that the impugned action in not providing full and free medical
facilities to retired defence personnel infringes Article 14 of the
also not impressed by the argument that all medical benefits and facilities
must be provided to ex- servicemen under the doctrine of 'legitimate
doctrine of 'legitimate expectation' is a 'latest recruit' to a long list of
concepts fashioned by Courts for review of administrative actions. No doubt,
the doctrine has an important place in the development of Administrative Law
and particularly law relating to 'judicial review'.
the said doctrine, a person may have reasonable or legitimate expectation of
being treated in a certain way by an administrative authority even though he has
no right in law to receive the benefit. In such situation, if a decision is
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.
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;
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.
supplied) In such cases, therefore, the Court may not insist an administrative
authority to act judicially but may still insist it to act fairly. The doctrine
is based on the principle that good administration demands observance of
reasonableness and where it has adopted a particular practice for a long time
even in absence of a provision of law, it should adhere to such practice
without depriving its citizens of the benefit enjoyed or privilege exercised.
not wish to burden our judgment with several English, American and domestic
decisions, since the proposition of law has not been disputed by the other
side. In our opinion, however, in the instant case, the doctrine of legitimate
expectation has no application. It is not even the case of the petitioners that
certain medical facilities which were enjoyed by them in the past have been
withdrawn or revoked. On the contrary, they have admitted that after
independence, because of several representations made by them and various
efforts, suggestions and recommendations by different Committees and
Commissions, more and more medical facilities were provided but they were not enough.
It was also their case that in the last few years, situation regarding
infrastructure and staff has been improved.
have, therefore, prayed that medical facilities which were not provided in past
may also be provided now to retired defence personnel. Similarly, medical
facilities should also be extended for serious and terminal diseases. The
doctrine of legitimate expectation, in the fact situation, therefore, cannot be
invoked by the petitioner in the case on hand.
equally unimpressed by the submission of the learned counsel to issue
directions or guidelines to 'fill in gaps' in the exercise of plenary powers.
in absence of legislative provisions or administrative instructions governing
the field, this court may, in appropriate cases, issue necessary directions as
has been done in several cases. [See Delhi Judicial Service Association v. State of Gujarat, (1991) 4 SCC 106 : AIR 1991 SC 2106 : (1991) 3 SCR 936;
D.K. Basu v. State of West
Bengal, (1997) 1 SCC
416 : AIR 1997 SC 610; Visakha v. State of Rajasthan, (1997) 6 SCC 241 : AIR 1997 SC 3011].
instant case, however, a scheme providing medical facilities to ex-servicemen
has been framed. It has been decided by the Central Government to extend
medical facilities to retired defence personnel on the basis of 'one time
contribution' which is legal, proper and reasonable. In the circumstances, the
ratio laid down by the Supreme Court in the above cases does not apply and no
directions need be issued to the respondents.
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.
would be appropriate to quote here an epitaph from the Kohima War Cemetry which
conveys eloquently what our Soldiers, Sailors and Airmen are cheerfully willing
to sacrifice their lives;
you go home, Tell them for us;
your to-morrow, We gave our to-day." The petitioner has made grievance
that during war and serious situations, defence personnel are remembered but as
soon as grave situation is over, they are forgotten and ignored. We are
reminded what Francis Quarrels said;
Gods and Soliders we alike adore, At the time of danger, not before;
deliverance both are alike requited, Our Gods forgotten and our Soldiers
more than two decades when the respondents appointed a High Level Committee
under the Chairmanship of Shri K.P. Singh Deo, Minister of State, Ministry of Defence
to consider problems of ex- servicemen, it highlighted the difficulties
experienced by ex-servicemen in the light of hard and strenuous work undertaken
by them and exigencies of service in which they had to discharge their duties.
The Committee, while submitting the report, observed in the Foreword Our Armed
Forces have won world wide renown for their valour, dedication and devotion.
The achievements of the Armed Forces in varying roles since Independence are a matter of pride for all of us
in the Country and that of envy of other Nations.
from all castes, creeds, religions and from all parts of India join the Armed Forces and their
integration as a secular homogeneous and dedicated team is remarkably total.
Armed Forces personnel have sterling qualities of head and heart, courage,
discipline, loyalty and implicit obedience to orders. They are the guardians of
the safety and honour of the Country and are ever prepared to sacrifice their
lives to preserve the freedom and sovereignty of the Country. In addition to
their preparedness for war, during peace time, our Armed Forces have always
risen to the occasion to assist the Administration during natural calamities
and internal unrest. The sacrifices made by the personnel of the Armed Forces
from 15th August, 1947 to date have been so innumerable
that they can best be described by the following quotation of Sir Winston
Churchill who had on 20th
August, 1940 said:
in the field of human conflict was so much owed by so many to so few" The
Committee was conscious of the ground reality that the personnel of Armed
Forces are the only Government employees who retire at a relatively younger age
to keep 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, interdependent. The Committee
quoted Pandit Jawaharlal Nehru, first Prime Minister of India, who, while
inaugurating the National Defence College at Delhi as early as in 1960, stated;
itself is not an isolated matter now. It is intimately connected with the
economic aspect, industrial aspect and many other aspects in the country India today has become positively and
actively defence conscious, more than at any time since independence. Our
desire is to continue to live peacefully and co-operatively with all our neighbours.
Nevertheless, no defence apparatus can exist in a purely idealistic way.
to be very realistic and remain prepared for any emergency".
supplied) The Committee considered several problems and prepared a detailed
report. Regarding medical facilities, it observed:
Prior to the
issue of Government of India, Ministry of Defence letter No. 16307/DGCAFMS/DG3(A)/417S/D(AG-1)
dated 14th October, 1966, ex-servicemen and their families were not entitled to
receive any treatment from Service hospitals except to a very limited extent as
treatment for specific disabilities in respect of ex-servicemen in receipt of
Forces pensioners could be admitted to Service hospitals only if accommodation
was available and admission was sanctioned by the Officer Commanding
Station/Administrative Authority. Specified hospital stoppages were to be paid.
No out- patient treatment was available to such pensioners.
ex-servicemen were not entitled to any treatmentout-door or indoor from Service
letter cited in para 12.9 above was instrumental in making very liberal
concessions towards the treatment of ex-servicemen and their families from
Service sources. Under the provisions, ex-service pensioners and their families
and the families of deceased service personnel drawing pension of some kind were
entitled to free out-patient treatment including supply of free medicines from
the nearest military hospital. Sanction was also accorded for these personnel
for providing in-patient treatment in Service hospitals subject to the following
That the disease
is not incurable.
hospital accommodation could be made available from within the authorized
number of beds and without detriment to the needs of serving personnel.
treatment will be limited to the facilities locally available.
will be provided for journeys from the residence to the hospital and back; and
nursing would be admissible.
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.
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:-
Sanction of 1155
beds exclusively for the ex- servicemen pensioners and entitled dependents.
ex-servicemen as out-patients and in-patients, additional staff would also be
required as under:-
Other Ranks 312
: Ex-servicemen are living in villages, towns and cities throughout the
country. The 31 military hospitals are situated in military stations. The
primary aim of these hospitals is to provide medical cover to the serving
personnel. On account of their location, only those ex-servicemen and entitled
dependents within close proximity to these stations are likely to avail of the
facilities in these military stations. In the case of most other ex-servicemen
they have to perforce depend upon the civil hospitals in the districts.
States/Union Territories should provide medical assistance to the ex-servicemen
in their civil hospitals free of charge, for example as provided in Karnataka.
In Chapter X, certain recommendations have been made for provision of funds
from the Seventh Plan expenditure for the construction of wards for
ex-servicemen in hospitals. This should also be done in civil hospitals
particularly in States where there are a large number of ex- servicemen."
The Committee then made certain recommendations, inter alia, observing that the
existing facilities in the Military hospitals should be enhanced for
ex-servicemen and their entitled dependents in a phased manner in the next few
already noted earlier, in 1983, Regulations for the medical services of the
Armed Forces were framed superseding the Regulations for the medical services
of the Armed Forces, 1962. Regulation 296 providing "Entitlement to medial
attendance" is relevant and the material part thereof reads thus:
The classes noted
below are entitled to medical attendance as defined in paras 284, 285 and 286 to
the extent shown against each: Classes Medical attendance Admissible Remarks (a)
personnel in receipt of a disability pension and Ex- servicemen of the Indian
State Forces in receipt of a disability pension from the Defence Services
Estimates for a disability accepted as attribu- table to or aggra- vated by
service with the Indian Armed Forces.
out-patient or in a hospital.
authorized only for the disabilities for which pension has been granted
excluding cases of Pulmonary Tuber- culosis, Leprosy and mental diseases and
patients requiring any special treatment not ordinarily available from service
sources, such as radiotherapy.
Admission may be
authorized for the purpose of observation to enable the medical authorities to
arrive at a correct assessment of the degree of disability.
Personnel of F(i)
above, who have been invalidated out of service on account of a dis- ability
accepted as attributable to/ aggravated by military service but who are not in
receipt of a disability pension for the reason that the disability is less than
20% and individuals whose case attributability has been conceded by the Medical
Board but a final decision in the matter ha snot been reached.
out-patient or in a hospital, if accommodation is available.
As in F(i)
be discontinued immediately in respect of cases under conside- ration if the
final decision is against the findings of the Medical Board.
personnel invalided out of service on account of pulmo- nary tuberculosis which
has been accepted as attribu- table to/aggravated by service and for which
disability pension has been granted.
treatment as out patient.
May be admitted
in Military Hospital (Cardio Thoracic Centre), Pune, on the recommen- dation of
OC of an armed forces hospital, if a bed out of the ten T.B. beds reserved for
this category of personnel is available. On relapse of the disease. This
concession is not an entitlement for indoor hospital treatment for T.B. from
military sources for ex- servicemen.
pensioners and their families of deceased service personnel drawing pension of
Free out patient
treatment in the nearest Armed Forces Hospital including the supply of medicine
necessary for their treatment.
treatment in Armed Forces Hospital subject to the following conditions:
That the disease
is not incurable.
accommodation could be made available within the authorized number of beds and
without detriment to the needs of service personnel.
treatment will be limited to the facilities available locally.
will be provided for journeys from the residence to the hospital and back.
nursing would be admissible.
for in patient
treatment, hospital stoppages will be as para 16 of Appendix 5.
scope of the above concessions will not include treatment for pulmonary tuber- culosis,
leprosy, mental disease, malignant disease or any other disease for which
treatment is not ordinarily available from local military sources.
These conce- ssions
will not be admissible to the service pensioners who are re- employed in
Government/Semi- Government departments or other public or private Sector
undertaking which provides medical facilities to their employees.
for this purpose
family includes wife and un- married children / step children / adopted
children under 18 years of age are dependent on the pensioners.
: Retired officers
of the Armed Forces including M.N.S. officers and retired JCOs, WOs, OR and NcsE
or equivalents in the Navy and Air Force in receipt of service pension may be
treated in a hospital if accommodation is available and admission is sanctioned
by the O.C. Station/administrative authority. They are not entitled to special
nursing in hospital.
affidavit in reply filed by the Union of India, it was stated that under the
Group Insurance Scheme and from the Armed Forces Flag Day Fund, medical
treatment has been provided to ex-servicemen. On the recommendation of Fifth
Pay Commission, the Government had sanctioned a fixed medical allowance of
Rs.100 per month to those ex-servicemen 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.
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.
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
communication inter alia states as under:
be a contributory scheme. On retirement, every Service personnel will
compulsorily become a member of ECHS by contributing his/her share and the
Scheme would be applicable for life time. Similarly ex- servicemen who have
already retired can become members by making a one time contribution. There
would be no restriction on age or medical condition. The contribution will be
according to the rates prescribed for CGHS pensioners as per Appendix-A
personnel joining the scheme will forfeit the medical allowance of Rs.100/-
presently admissible to them and those who do not join the scheme would
continue getting medical allowance as hithertofore. Such persons would not be
entitled to any medical facility from Armed Forces Clinics/Hospitals or
Polyclinics set up under the scheme."
(c) of the said letter states that the scheme would cater for medicare to the
ex-servicemen by establishing new Polyclinics and Augmented Armed Forces
Clinics at 227 stations spread across the country, the details of which have
been given in the letter. It also provides for reimbursement of cost of
medicines/ drugs/consumables and for financial outlay. It states that the
service head quarters would ensure that allocations made for revenue
expenditure and reimbursement is fully utilized on yearly basis. It then
prescribes rates of contribution in Appendix-A which are as under:
Rs.3000 Rs. 1800
Rs.3001-6000 Rs. 4800
Rs.6001-10000 Rs. 8400
Rs.10001-15000 Rs. 12000
Rs.15000 and above Rs. 18000
the above discussion as well as the relevant provisions of the scheme, we are
satisfied that necessary steps have been taken by the respondents. Under the
scheme, now in vogue, all ex-servicemen are entitled to medical treatment
provided they become members of the said scheme and pay requisite contribution.
It is also not in dispute that this would apply only to those defence personnel
who retired prior to 1st
January, 1996 since
officials who have retired after that date or are still in service are governed
by the scheme and are paying requisite amount of contribution.
larger question raised by various associations is that to get free and full
medical aid is their fundamental right and is corresponding duty of the
Government. The respondents, hence can neither deny that right nor can ask
ex-servicemen to pay contribution amount for getting medical services.
buttress the contention, the learned counsel invited our attention to several
decisions of this court. It is not necessary to deal with all those cases. We
may, however, consider some of them which are relevant.
reliance was placed on a decision of three Judge Bench in Consumer Education
& Research Centre.
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, better standard of living
in hygienic conditions at the work place and leisure.
for the Court, K. Ramaswamy, J. observed in para 25;
we hold that right to health, medical aid to protect the health and vigour of a
worker while in service or post retirement is a fundamental right under Article
21, read with Articles 39(e), 41, 43, 48A and all related to Articles and
fundamental human rights to make the life of the workman meaningful and
purposeful with dignity of person." (emphasis supplied) Reliance was also
placed on CESC Ltd. v. Subhash Chandra Bose, [1992) 1 SCC 441 : AIR 1992 SC
573], wherein His Lordship (K. Ramaswamy, J.) held that right to health of a
worker is covered by Article 21 of the Constitution. It was also indicated that
health does not mean mere absence of sickness but would mean complete physical,
mental and social well-being.
of health and medical care generate devotion and dedication to give the
workers' best, physically as well as mentally, in productivity. It enables the
worker to enjoy the fruit of his labour, to keep him physically fit and
mentally alert for leading a successful economic, social and cultural life. The
medical facilities are, therefore, part of social security and like gift-edged
security, it would yield immediate return in the increased production or at any
rate reduce absenteeism on the ground of sickness." Reference was made to Bandhua
Mukti Morcha v. Union of India, [(1984) 3 SCC 161 : AIR 1984 SC 802] wherein Bhagwati,
J. (as His Lordship then was) referring to Francis Coralie Mullin v. Administrator,
Union Territory of Delhi, [(1981) 1 SCC 608 : AIR 1981 SC 746] stated;
is the fundamental right of every one in this country, assured under the
interpretation given to Article 21 by this Court in Francis Mullen's case, to
live with human dignity, free from exploitation. This right to live with human
dignity enshrined in Article 21 derives its life breath from the Directive
Principles of State Policy and particularly Clauses (e) and (f) of Article 39
and Articles 41 and 42 and at the least, therefore, it must include protection
of the health and strength of workers men and women, and of the tender age of
children against abuse, opportunities and facilities for children to develop in
a healthy manner and in conditions of freedom and dignity, educational
facilities, just and humane conditions of work and maternity relief. 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 be so exercised as to ensure
compliance with the laws made by Parliament and any existing laws which apply
in that State." The counsel also relied upon Paschim Banga Khet Mazdoor Samity
v. State of West Bengal, [(1996) 4 SCC 37 : AIR 1996 SC
2426]. That case related to failure on the part of Government hospitals to
provide timely emergency medical treatment to persons in serious conditions.
Relying on Khatri (II) v. State of Bihar, [(1981) 1 SCC 627], this Corut said;
is no doubt true that financial resources are needed for providing these
facilities. But at the same time it cannot be ignored that it is the
Constitutional obligation of the State to provide adequate medical services to
the people. Whatever is necessary for this purpose has to be done. In the context
of the constitutional obligation to provide free legal aid to a poor accused,
this Court has held that the State cannot avoid its constitutional obligation
in that regard on account of financial constraints. (See : Khatri (II) v. State
of Bihar (1981) 1 SCC 627]. The said
observations would apply with equal, if not greater, force in the matter of
discharge of constitutional obligation of the State to provide medical aid to
preserve human life. In the matter of allocation of funds for medical services
the said constitutional obligation of the State has to be kept in view. It is
necessary that a time-bound plan for providing these services should be chalked
out keeping in view the recommendations of the Committee as well as the
requirements for ensuring availability of proper medical services in this
regard as indicated by us and steps should be taken to implement the same.
State of West Bengal alone is a party to these
proceedings. Other States, though not parties, should also take necessary steps
in the light of the recommendations made by the Committee, the directions
contained in the Memorandum of the Government of West Bengal dated August 22, 1995 and the further directions given
Vincent Panikurlangara v. Union of India, [(1987) 2 SCC 165 : AIR 1987 SC
990],the issue related to manufacturing, selling and distributing approved
standard of drugs and banning of injurious and harmful medicines. In the
background of that question, this Court held right to maintenance and
improvement of public health as one of the fundamental rights falling under
Article 21 of the Constitution.
a well-known adage "Sharirmadhyam 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.
to public health, in our opinion, therefore, is of high priority--perhaps the
one at the top".
National Textile Workers' Union v. P.R. Ramakrishnan,
[(1983) 1 SCC 228 : AIR 1983 SC 75], 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;
cannot allow the dead hand of the past to stifle the growth of the living
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
the growth of the society and choke its progress or if the society is vigorous
enough, it will cast away the law which stands in the way of its growth. Law
must therefore constantly be on the move adopting itself to the fast changing
society and not lag behind. It must shake off the inhibiting legacy of its
colonial past and assume a dynamic role in the process of social
transformation. We cannot therefore mechanically accept as valid a legal rule
which found favour with the English courts in the last century when the
doctrine of laissez faire prevailed. It may be that even today in England the courts may be following the
same legal rule which was laid down almost a hundred years ago, but that can be
no reason why we in India should continue to do likewise. It
is possible that this legal rule might still be finding a place in the English
text books because no case like the present one has arisen in England in the last 30 years and the
English courts might not have had any occasion to consider the acceptability of
this legal rule in the present times. But whatever be the reason why this legal
rule continues to remain in the English text books, we cannot be persuaded to
adopt it in our country, merely on the ground that it has been accepted as a
valid rule in England.
have to build our own jurisprudence and though we may receive light from
whatever source it comes, we cannot surrender our judgment and accept as valid
in our country whatever has been decided in England".
cannot be gainsaid that right to life guaranteed under Article 21 of the
Constitution embraces within its sweep not only physical existence but the
quality of life.
statutory provision runs counter to such a right, it must be held
unconstitutional and ultra vires Part III of the Constitution. Before more than
hundred years, in Munn v. Illinois, (1876) 94 US 113 : 24 Law Ed 77, Field, J.
explained the scope of the words "life" and "liberty" in
5th and 14th Amendments to the U.S. Constitution and proclaimed;
the term "life" as here used something more is meant than mere animal
existence. The inhibition against its deprivation extends to all these limits
and faculties by which life is enjoyed. The provision equally prohibits the
mutilation of the body or amputation of an arm or leg or the putting out of an
eye or the destruction of any other organ of the body through which the soul
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) The above observations have
been quoted with approval by this Court in Kharak Singh v. State of U.P. (1964) 1 SCR 332 : AIR 1963 SC 1295. A similar view
thereafter has also been taken in several cases, viz., Prithi Pal Singh v.
Union of India, (1982) 3 SCC 140 : AIR 1982 SC 1413; A.K. Roy v. Union of
India, (1982) 1 SCC 271 : AIR 1982 SC 710; Olga Tellis v. Bombay Municipal
Corporation, (1985) 3 SCC 545 : AIR 1986 SC 180; State of H.P. v. Umed Ram
Sharma, (1986) 2 SCC 68 : AIR 1986 SC 847; Prabhakaran v. State of Tamil Nadu,
(1987) 4 SCC 238 : AIR 1987 SC 2117; A.R. Antulay v. R.S. Nayak, (1988) 2 SCC
602 : AIR 1988 SC 1531; Vikram Deo Singh v. State of Bihar, 1988 Supp SCC 734 :
AIR 1988 SC 1782; Parmanand Katara v. Union of India, (1989) 4 SCC 286 : AIR
1989 SC 2039; Kishan Pattnayak v. State of Orissa, 1989 Supp (1) SCC 258 : AIR
1989 SC 677; Shantistar Builders v. Narayan, (1990) 1 SCC 520 : AIR 1990
SC 630; Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P., (1990) 4 SCC449 : AIR 1990 SC 2060; Charan Lal Sahu
v. Union of India, (1990) 1 SCC 613 : AIR 1990 SC 1480; Delhi Transport
Corporation v. Delhi Transport Corporation Mazdoor Congress, 1991 Supp (1) SCC
600(735) : AIR 1991 SC 101; Kapila Hingorani v. State of Bihar, (2003) 6 SCC 1; District Registrar
& Collector, Hyderabad v. Canara Bank, (2005) 1 SCC 496].
stand of the Union of India, however, is that to provide medical facilities to
all defence personnel in service as well as retired, necessary steps have been
taken. So far as ex-servicemen are concerned, Contributory Scheme of 2002
provides for medical services by charging 'one time contribution' on the basis
of amount of pension received by an employee. The amount ranges from Rs.1,800
to Rs.18,000 which cannot be said to be excessive, disproportionate or
unreasonably high. The question, therefore, is whether the State can ask the
retired defence personnel to pay an amount of contribution for getting medical
facilities by becoming a member of such scheme.
opinion, such a contributory scheme cannot be held illegal, unlawful or
unconstitutional. Ultimately, the State has to cater to the needs of its
employeespast and present. It has also to undertake several other activities as
a 'welfare' State. In the light of financial constraints and limited means
available, if a policy decision is taken to extend medical facilities to ex- defence
personnel by allowing them to become members of contributory scheme and by
requiring them to make 'one time payment' which is a 'reasonable amount', it
cannot be said that such action would violate fundamental rights guaranteed by
Part III of the Constitution.
State of Punjab v. Ram Lubhaya Bagga, [(1998) 4 SCC
117: AIR 1998 SC 1703], a three Judge Bench of this Court had an
occasion to consider the question of change of policy in regard to
reimbursement of medical expenses to its employees. Referring to earlier
decisions, the Bench took note of ground reality that no State has unlimited
resources to spend on any of its projects.
relating to supply of medical facilities to its citizens is not an exception to
the said rule. Therefore, such facilities must necessarily be made limited to
the extent finances permit. No right can be absolute in a welfare State. An
individual right has to be subservient to the right of public at large.
principle equally applies when there is any constraint on the health budget on
account of financial stringencies." We are in agreement with the above
view. In our considered opinion, though the right to medical aid is a
fundamental right of all citizens including ex-servicemen guaranteed by Article
21 of the Constitution, framing of scheme for ex-servicemen and asking them to
pay 'one time contribution' neither violates Part III nor 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.
made by this Court in the cases relied upon by the petitioner and intervenors
including Consumer Education & Research Centre 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
must, however, hasten to add that we are not unmindful or oblivious of
exemplary and extremely useful services rendered by defence personnel. We are
equally conscious of the fact that the safety, security and comfort enjoyed by
the countrymen depend largely on dedication and commitment of our soldiers,
sailors and airmen. We are also aware that they are exposed to harsh terrain
and discharge their duties in hostile conditions of life. For days and months,
they are at places covered by snow or in desert or in wild forests.
are unable to come in contract with their family members, kiths and kins or
rest of the world. They are not in a position to enjoy even usual and
day-to-day comforts and amenities of life available to ordinary men and women.
At times, they are not able to communicate to their friends and relatives. It
is also not in dispute that the question relates to a particular class of
persons which is a 'diminished category', retired prior to January 1, 1996.
into account all these facts and the circumstances in their entirety, on March 8, 2006, we passed the following order:
K. S. Bhati, learned counsel appearing for Petitioner No. 1, commenced his
submissions at 10.30
a.m. and concluded at 2.35 p.m. Thereafter, Mr. J.S. Manhas, learned counsel
appearing for Petitioner Nos. 2 and 3, made his submissions till 3.00 p.m. Mr. Ravi
P. Mehrotra, learned counsel appearing for the Union of India, made his
submissions till 3.25 p.m. Mr. K.S. Bhati, learned counsel, thereafter rejoins
and concluded at 3.30
have heard the learned counsel for the parties on the questions of law,
particularly on the aspect of the correctness of broad observations made in the
decision of a three-Judge Bench in Consumer Education Research Centre &
Ors. vs. Union of India & Ors. (1995 (3)
the course of hearing with the assistance of the learned counsel, we have
perused the Ex-servicemen Contributory Health Scheme [for short,
"E.C.H.S."] dated 30th December, 2002. The contribution to be made by an ex-serviceman so as to avail the
benefit of health scheme under the E.C.H.S. is one-time payment ranging from
Rs.1800/- to Rs.18,000/- depending upon the amount of pension drawn by him. In
this writ petition, we are concerned with the cases of those ex- servicemen who
have retired before 1st
January, 1996. It is
evident that this class of ex-servicemen is a diminishing category.
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.
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 incorporated in the affidavit. The waiver or payment would be
only in respect of those who voluntarily wish to join the E.C.H.S.
above order, we suggested that the Government may waive payment of contribution
charges or may consider to pay requisite 'one time contribution' on behalf of
the employees who may be interested in availing the benefits of ECHS. We also
indicated that in case of any difficulty in granting this one time concession,
the Government may 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. No such affidavit has
been filed by the Government so far. It can, therefore, safely be presumed that
the Government has no difficulty in waiving/paying contribution as a 'one time
measure' on behalf of ex- defence personnel who retired prior to January 1, 1996 and wish to avail benefits of ECHS.
Obviously, the said question will not arise in future. We, therefore, dispose
of the matter in the light of our earlier order and the observations made
the reasons aforesaid, the writ petition deserves to be partly allowed. Keeping
in view totality of facts and circumstances, in our considered view, the ends
of justice would be met if we hold the Ex-servicemen Contributory Health
Scheme, 2002 (ECHS) to be legal, valid, intra vires and constitutional but direct
the respondent-Government either to waive the amount of contribution or to pay
such amount on behalf those ex- servicemen who retired prior to January 1, 1996
and who intend to avail medical facilities and benefits under the said scheme
by exercising option by becoming members of ECHS. In other words, it is open to
ex- defence personnel, who retired prior to January 1, 1996 to become members of ECHS and to
claim medical facilities and benefits under the said scheme without payment of
contribution amount. They are, however, not entitled to claim medical allowance
in future. The writ petition is accordingly disposed of. Rule is made absolute
to the extent indicated above.
facts and circumstances, however, parties are directed to bear their own costs.