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CASE NO.:

Writ Petition (civil) 210 of 1999

PETITIONER:

CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS & ORS.

RESPONDENT:

UNION OF INDIA & ORS.

DATE OF JUDGMENT: 22/08/2006

BENCH:

Y.K. SABHARWAL CJI & K.G. BALAKRISHNAN & S.H. KAPADIA & C.K. THAKKER & P.K.I. BALASUBRAMANYA

N

JUDGMENT:

JUDGMENT

Delivered by:

C.K. THAKKER, J.

C.K. THAKKER, J.

This 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.

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

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Government had accepted full responsibility for medicare

of disabled ex-servicemen as also for their rehabilitation.

Disabilities, which were categorized, were as

follows:

(i) Loss of limb or use of limb;

(ii) General medical and surgical disability;

(iii) Loss of speech;

(iv) Deafness;

(v) Blindness and material impairment of vision;

(vi) Pulmonary Tuberculosis;

(vii) Mental diseases.

The 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.

According 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.

Between 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.

According to the petitioner, the Pay Commission

missed the basic thrust of the requirement of providing

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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.

The 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.

The 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 Constitution.

According 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 Constitution.

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 Centre and Ors. v.

Union of India and Ors. (1995) 3 SCC 42.

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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 Centre.

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 & 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.

Accordingly, 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.

A 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.

Regarding 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

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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.

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 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.

A 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 filed.

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 the petitioner.

It was 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.

The 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.

We have heard learned counsel for the petitioner,

intervenors and for the respondent-authorities.

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

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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.

The 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.

It was 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.

The 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

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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.

We 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.

The 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

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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 petition maintainable.

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) 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 the

petition.

In our 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.

It was 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.

Granting 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.

We are 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

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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.

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 & 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;

"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 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.

The 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

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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;

"It 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, (i) that the

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 (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)

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 & 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].

In our judgment, therefore, it is clear that every

classification to be legal, valid and permissible, must

fulfill the twin-test, namely;

(i) the 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

(ii) such a differentia must have rational

nexus to the object sought to be achieved

by the statute or legislation in question.

In our 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 similarly situated.

There is, therefore, no violation of Article 14 if they are

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treated differently.

Likewise, 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.

Retired 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 Constitution.

We are also not impressed by the argument that all

medical benefits and facilities must be provided to ex-

servicemen under the doctrine of 'legitimate expectation'.

The 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'.

Under 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.

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 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.

We do 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

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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.

They 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.

We are equally unimpressed by the submission of

the learned counsel to issue directions or guidelines to

'fill in gaps' in the exercise of plenary powers.

Undoubtedly, 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]. In the 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.

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 Cemetry which conveys eloquently

what our Soldiers, Sailors and Airmen are cheerfully

willing to sacrifice their lives;

"When you go home,

Tell them for us;

For your to-morrow,

We gave our to-day."

The petitioner has made grievance that during war

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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;

"Our Gods and Soliders we alike adore,

At the time of danger, not before;

After deliverance both are alike requited,

Our Gods forgotten and our Soldiers slighted".

Before 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\027

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.

Men 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.

The 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:

"Never 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

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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;

"Defence itself is not an isolated matter now. It

is intimately connected with the economic

aspect, industrial aspect and many other

aspects in the country\005 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.

It has to be very realistic and remain prepared

for any emergency".

(emphasis supplied)

The Committee considered several problems and

prepared a detailed report. Regarding medical facilities, it

observed:

"Medical Facilities

12.9 Prior to the issue of Government of

India, Ministry of Defence letter No.

16307/DGCAFMS/DG\0273(A)/417\027S/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 follows:-

(a) Free medical treatment for specific

disabilities in respect of ex-servicemen in

receipt of disability pension.

(b) Other Armed 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.

(c) Families of ex-servicemen were not entitled

to any treatment\027out-door or indoor from

Service hospitals.

12.10 The Government 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

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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 conditions:-

(a) That the disease is not incurable.

(b) That the hospital accommodation could be

made available from within the authorized

number of beds and 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:-

(i) Officers 33

(ii) Nursing Officers 74

(iii) Other Ranks 312

(iv) Civilians 211

12.12 Civil Hospitals : 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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 29

other ex-servicemen they have to perforce

depend upon the civil hospitals in the districts.

Hence, 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 years.

As 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:

296. The classes noted below are entitled to medical

attendance as defined in paras 284, 285 and 286 to the extent

shown against each:\027

Classes

Medical attendance

Admissible

Remarks

(a)

(b)

(c)

A.

\005

\005

\005

\005

B.

\005

\005

\005

\005

C.

\005

\005

\005

\005

D.

\005

\005

\005

\005

E.

\005

\005

\005

\005

F.

(i)

Ex-service

personnel in receipt

of a disability

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 29

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.

As out-patient or in

a hospital.

(a) Treatment is

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.

(b) 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.

(ii)

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 29

decision in the

matter ha snot been

reached.

As out-patient or in

a hospital, if

accommodation is

available.

(a) As in F(i) above.

(b) Treatment will

be discontinued

immediately in

respect of cases

under conside-

ration if the final

decision is against

the findings of the

Medical Board.

(iii)

Ex-service

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.

(i) Domiciliary

treatment as out

patient.

(ii) 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.

G.

\005

\005

\005

\005

H.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 29

\005

\005

\005

\005

I.

\005

\005

\005

\005

J.

\005

\005

\005

\005

K.

\005

\005

\005

\005

L.

\005

\005

\005

\005

M.

\005

\005

\005

\005

N.

\005

\005

\005

\005

O.

Ex-Service pensioners

and their families of

deceased service

personnel drawing

pension of some kind

(i) Free out patient

treatment in the

nearest Armed

Forces Hospital

including the supply

of medicine

necessary for their

treatment.

(ii) In-patient

treatment in Armed

Forces Hospital

subject to the

following conditions:

a) That the disease is

not incurable.

b) The hospital

accommodation

could be made

available within the

authorized number

of beds and without

detriment to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 29

needs of service

personnel.

c) That the treatment

will be limited to the

facilities available

locally.

d) No conveyance will

be provided for

journeys from the

residence to the

hospital and back.

e) No special nursing

would be admissible.

f) for in patient

treatment, hospital

stoppages will be as

para 16 of Appendix

5.

The 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.

(ii) 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.

iii) for this purpose

family includes

wife and un-

married children /

step children /

adopted children

under 18 years of

age are dependent

on the pensioners.

Note : Retired officers of the Armed Forces including

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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.

In the 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\027

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.

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 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 attached.

(b) Retired 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."

Para 2 (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/

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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:

RATES OF CONTRIBUTION

(a) Pension upto Rs.3000 Rs. 1800

(b) Pension between Rs.3001-6000 Rs. 4800

(c) Pension between Rs.6001-10000 Rs. 8400

(d) Pension between Rs.10001-15000 Rs. 12000

(e) Pension of Rs.15000 and above Rs. 18000

From 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.

The 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.

To 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.

Strong reliance was placed on a decision of three

Judge Bench in Consumer Education & Research Centre.

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, better standard of living in hygienic conditions

at the work place and leisure.

Speaking for the Court, K. Ramaswamy, J.

observed in para 25;

"Therefore, 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

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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.

"Facilities 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;

"It 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

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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;

"It 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.

The 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 herein".

In 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.

Quoting a well-known adage "Sharirmadhyam

khalu dharma shadhanam" (healthy body is the very

foundation of all human activities), the Court observed

that\027

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"\005maintenance 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".

In 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;

"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 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.

We 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".

It 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.

If any statutory provision runs counter to such a right, it

must be held unconstitutional and ultra vires Part III of

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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;

"By 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].

The 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.

In our opinion, such a contributory scheme cannot

be held illegal, unlawful or unconstitutional. Ultimately,

the State has to cater to the needs of its employees\027past

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

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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.

In 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.

Provisions 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.

"This 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.

Observations 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 ex-servicemen.

We 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.

They 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

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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.

Taking into account all these facts and the

circumstances in their entirety, on March 8, 2006, we

passed the following order:

"Mr. 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 p.m.

Hearing concluded.

We 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) S.C.C.43).

During 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.

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

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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.

Judgment is reserved".

In the 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 therein.

For 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. In the facts and

circumstances, however, parties are directed to bear

their own costs.