Page 1 Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 9020-9021 OF 2012

(Arising out of SLP (C) Nos. 15739-15740 of 2008)

The Secretary, Ministry of Health & Family Welfare,

Government of Maharashtra … Appellant

Versus

S.C. Malte & Ors. … Respondents

J U D G M E N T

A. K. PATNAIK, J.

Leave granted.

2.I have read the judgment of my learned brother Justice

Swatanter Kumar but with due respect to his learning I am

unable to persuade myself to agree with his conclusion that

the appeals have no merit and with the directions in his

judgment. In my view, the appeals should be allowed and

Page 2 the impugned orders of the High Court should be set aside

for reasons which I shall indicate after setting out the facts.

3.The facts very briefly are that Section 23D of the High

Court Judges (Salaries and Conditions of Service) Act, 1954

(for short “the Act”) provides for medical facilities for retired

Judges. Sub-section (1) of Section 23D provides that every

retired Judge shall be entitled for himself and his family to

the same facilities as respects medical treatment and on the

same conditions as a retired officer of the Central Civil

Services, Class-I and his family, are entitled under any rules

and orders of the Central Government for the time being in

force. A retired officer of the Central Civil Services, Class-I

and his family are entitled to medical facilities under the

Central Government Health Scheme (for short “the CHGS

Scheme”). Justice S.C. Malte and four other retired Judges

who after retirement were residing in Aurangabad,

Maharashtra, addressed a letter to the Chief Justice of the

Bombay High Court mentioning therein the difficulties of the

retired Judges in getting the medical facilities under the

CGHS Scheme including the fact that the facilities

Page 3 thereunder were provided at only three cities in Maharashtra,

namely, Mumbai, Nagpur and Pune. This letter was treated

as suo motu Writ Petition No.6285 of 2005 and an order was

passed by the High Court on 17.07.2006 directing the

Government of Maharashtra to frame rules for medical

treatment and reimbursement of retired Judges of the

Bombay High Court. The Government of Maharashtra

drafted the Maharashtra Retired High Court Judges (Facilities

for Medical Treatment) Rules, 2006, pursuant to the order

dated 17.07.2006 of the Bombay High Court and placed the

Draft Rules of 2006 before the High Court. The amicus

curiae appearing for the suo motu writ petitioners, however,

suggested a change in the Draft Rules of 2006 and the

change was that the retired Judges shall be entitled to the

medical facilities and reimbursement provided in the Draft

Rules whenever the CGHS Scheme is not availed of and the

High Court disposed of the writ petition by order dated

15.01.2007 with the direction to the State Government to

either notify the Draft Rules in the form suggested by the

amicus curiae or amend the G.R. for medical benefits to

Page 4 sitting Judges and extend the same benefits also to the

retired Judges in exercise of its power under sub-section (2)

of Section 24 of the Act. The Government of Maharashtra

(the appellant herein) then filed Civil Application No. 73 of

2008 for review of the order dated 15.01.2007, but by order

dated 22.04.2008 the High Court rejected the prayer for

review and directed the State Government to comply with

the order dated 15.01.2007 of the High Court within two

months. Aggrieved, the appellant filed this appeal against

the order dated 15.01.2007 passed in suo motu writ petition

No.6285 of 2005 and the order dated 22.04.2008 rejecting

Civil Application No.73 of 2008.

4.Section 23D of the Act which is titled “Medical facilities

for retired Judges” is extracted hereinbelow:

“23D(1) Every retired Judge, shall, with effect from

the date on which the High Court Judges

(Conditions of Service) Amendment Act, 1976,

receives the assent of the President be entitled for

himself and his family, to the same facilities as

respects medical treatment and on the same

conditions as a retired officer of the Central Civil

Page 5 Services, Class-I and his family, are entitled under

any rules and orders of the Central Government for

the time being in force.

(2) Notwithstanding anything in sub-section (1) but

subject to such conditions and restrictions as the

Central Government may impose a retired Judge of

the High Court for a State may avail, for himself

and his family, any facilities for medical treatment

which the Government of that State may extend to

him.”

5.It will be clear from language of sub-section (1) of

Section 23D of the Act quoted above that every retired Judge

is entitled for himself and his family, to the same facilities as

respects medical treatment and on the same conditions as a

retired officer of the Central Civil Services, Class-I and his

family, are entitled under any rules and orders of the Central

Government for the time being in force. Sub-section (2) of

Section 23D of the Act, however, provides that

notwithstanding anything in sub-section (1) but subject to

such conditions and restrictions as the Central Government

may impose a retired Judge of the High Court for a State may

Page 6 avail, for himself and his family, any facilities for medical

treatment which the Government of that State may extend

to him. Thus, under sub-section (2) of Section 23D of the

Act, the power is vested in the Government of the State to

extend facilities for medical treatment to a retired Judge of

the High Court for that State and his family different from the

facilities provided to a retired officer of the Central Civil

Services, Class-I and his family. This statutory power is that

of the State Government and cannot be exercised by the

High Court under Article 226 of the Constitution. The

appellant, therefore, was right in urging a ground in these

appeals that the High Court had no jurisdiction to direct the

State Government to frame any particular rule regarding

medical facilities of the retired Judges of the Bombay High

Court.

6.Though, there are several decisions of this Court on the

point that the legislative power or the rule making power

cannot be exercised by the Court either under Article 226 or

under Article 32 of the Constitution, I may only cite the

Page 7 decision of this Court in Supreme Court Employees Welfare

Association v. Union of India (AIR 1990 SC 334). In this case,

writ petitions were filed by the Supreme Court Employees

Welfare Association and others seeking higher pay scales

and the Attorney General for India appearing for the Union of

India contended inter alia that this Court cannot issue a

mandate to the President of India to grant approval to the

rules framed by the Chief Justice of India relating to salaries,

allowances, leave and pensions of the officers and servants

of the Supreme Court and this Court held that there can be

no doubt that an authority exercising legislative function

cannot be directed to do a particular act and the President of

India cannot therefore be directed by the Court to grant

approval to the proposals made by the Registrar General of

the Supreme Court, presumably on the direction of the Chief

Justice of India. Hence, neither the High Court in exercise of

its power under Article 226 of the Constitution nor this Court

under Article 32 or Article 136 of the Constitution can direct

the State Government to grant particular medical facilities to

a retired High Court Judge when sub-section (2) of Section

Page 8 23D of the Act vests such power on the State Government to

grant medical facilities other than those mentioned in sub-

section (1) of Section 23D of the Act.

7.In Kuldip Singh v. Union of India [JT 2002 (2) SC 506],

the medical facilities for retired Judges of the Supreme Court

were in issue. Section 23C of the Supreme Court Judges

(Salaries and Conditions of Services) Act, 1958, provides for

medical facilities for retired Judges. This Section 23C

provides that every retired Judge shall be entitled, for himself

and his family, to the same Central Civil Services Class-I and

his family, are entitled under any rules and orders of the

Central Government for the time being in force. The Central

Government had made the Supreme Court Judges Rules,

1959 for sitting Judges of the Supreme Court and Rule 5 of

these Rules provides for facilities for medical treatment and

accommodation in hospitals and the proviso to Rule 5 stated

that the medical expenses shall be reimbursed on

prescription of government doctors/hospitals or (registered

medical) practitioners/private hospitals by the Registry of the

Page 9 Supreme Court of India. This Rule 5, however, did not apply

to retired Judges. Justice Kuldip Singh, a retired Judge of the

Supreme Court, filed a writ petition praying for a declaration

to the effect that the proviso to Rule 5 of the Supreme Court

Judges Rules, 1959, should be made applicable to the retired

Judges of this Court and that the provisions of Section 23C of

the Supreme Court Judges (Salaries and Conditions of

Services) Act, 1958, should be struck down. While the writ

petition was pending before this Court, the Central

Government issued a memorandum dated 06.02.2002 which

stated that it had been decided in consultation with the

Ministry of Law, Justice and Company Affairs, Department of

Justice, to delegate powers of relaxation of rules for

sanctioning medical reimbursement claims, in respect of

retired Chief Justices of India and Judges of the Supreme

Court holding CGHS pensioner’s card to the Registrar

General of the Supreme Court who will exercise this power

with the prior approval of the Chief Justice of India or his

nominee and the reimbursement of medical expenses to the

retired Chief Justices of India and Judges of the Supreme

Page 10 Court holding CGHS pensioner’s card would also be made by

the Supreme Court Registry. In view of the aforesaid

memorandum dated 06.02.2002 issued by the Central

Government, Justice Kuldip Singh did not press the prayer in

the writ petition and the writ petition was disposed of in

terms of the said office memorandum. This was thus a case

where the Central Government was of the opinion that the

same facilities should be made available to the retired Judges

of the Supreme Court and their families and had accordingly

issued an office memorandum to that effect and this was not

a case where this Court in exercise of judicial powers under

Article 32 of the Constitution directed the Central

Government to grant particular medical facilities to the

retired Supreme Court Judges.

8.It has been brought to our notice by the learned

Additional Solicitor General Mr. Garuab Banerji that in fact

some of the State Governments in exercise of their powers

under sub-section (2) of Section 23D of the Act are providing

the same medical facilities and medical reimbursement to

Page 11 retired Judges and their families as are being provided to

sitting Judges of the High Court and their families. In Jammu

& Kashmir, by virtue of the State Government order dated

19.02.2006, retired Judges are entitled to the same benefits

as are available to the sitting Judges of Jammu & Kashmir

High Court. In Gujarat, the Gujarat Minister’s (Medical

Attendance and Treatment) Rules 1964 have been extended

to retired Judges of the High Court and the powers of the

State Government under these Rules with respect to

reimbursement have been delegated to the Chief Justice of

the Gujarat High Court for sanctioning and reimbursing the

expenditure for both sitting and retired Judges and their

family members. In Andhra Pradesh, the Government of

Andhra Pradesh has extended the medical benefits to the

retired Judges of the High Court at par with sitting Judges of

the High Court of Andhra Pradesh. In Madhya Pradesh, the

Chief Justice of the High Court sanctions the reimbursement

of the medical bills of the retired Judges of the High Court

pursuant to the orders passed by the State Government. In

Uttar Pradesh, the medical facilities to the retired Judges of

Page 12 the Allahabad High Court are the same as those available to

the sitting Judges of the High Court. In the light of these

provisions regarding medical facilities in other States, the

Government of Maharashtra must consider extending better

medical facilities to the retired Judges of the Bombay High

Court, but what exactly should be the provisions for medical

facilities can only be decided by the State Government in

exercise of its powers under sub-section (2) of Section 23D of

the Act.

9.In my view, therefore, the impugned orders of the High

Court should be set aside and the appeal should be disposed

of with the recommendations in this judgment.

.……………………….J.

(A. K. Patnaik)

New Delhi,

December 13, 2012.

Page 13 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 9020-9021 OF 2012

(Arising out of SLP (C) Nos.15739-15740 of 2008)

Secretary, Ministry of Health & Welfare

Government of Maharashtra …

Appellant

Versus

S.C. Malte & Ors. … Respondents

J U D G M E N T

Swatanter Kumar J .

1.Leave granted.

2.Some of the former Judges of the Bombay High Court,

particularly those who are settled at Aurangabad, moved a

representation to the Chief Justice of that High Court

explaining the difficulties faced by them in getting medical

facilities and difficulties in respect of reimbursement of the

expenses on medicines. These former Judges also included

Judges who were appointed to the Bombay High Court but

Page 14 were subsequently transferred under the transfer policy to

other High Courts. After their tenure, their efforts to resolve

these issues obviously did not result in bringing about any

fruitful result. In this representation, they also referred to

various judgments under which the full reimbursement was

provided under different rules as well as disparities that were

prevalent in this respect, in different States of the country.

This representation came to be treated as a suo motu Writ

Petition on the appellate side of the Bombay High Court. In

this writ petition, on 13

th

October, 2005, after hearing the

counsel appearing for the parties, the Court noticed that

some hospitals had been empanelled by the Government as

approved hospitals under its Scheme. It was noticed in the

same order that the provisions under the Central

Government Health Scheme (‘CGHS’, for short) are

inadequate and under the scheme only a few hospitals in

selected cities are recognized for reimbursement of medical

treatment. It was also mentioned in the letter sent to the

Chief Justice of the Bombay High Court that government

hospitals in Aurangabad did not have the facilities of proper

Page 15 diagnosis and treatment for certain serious ailments and

CGHS had not been extended to Aurangabad where all the

said former Judges had settled after their retirement.

3.The contention of the learned counsel appearing for the

Union of India is that where CGHS has not been extended,

there the former Judges can take the treatment from the

government hospitals and if any treatment is not available in

the government hospitals, then they would be at liberty to go

to any hospital to which they are referred to by the doctors of

the government hospitals. Having noticed these difficulties

and the practical problems which had really become a

matter of great concern for the High Courts and the former

Judges of the High Courts, the Court passed the following

interim order:

“Meanwhile, the Hon’ble Retired Judges

would be permitted to get medical

treatment from any of the hospital

mentioned in paragraph 4 on being

referred by a Doctor of Government

Hospital and obviously their bills shall be

reimbursed expeditiously.”

Page 16 4.The Court passed another order dated 23

rd

June, 2006

laying down the procedure that should be adopted for

dealing with the medical bills of the former Judges and

directed as under:

“Neither the State Government nor the

Central Government have challenged

that order so far. This being the position,

now the modalities of actual working will

have to be set down. In view of this

State of affairs, we propose to pass an

order whereby as in the case of the

retired Supreme Court Judges as

permitted by the Central Government by

its office Memorandum dated

06.02.2002, medical bills of the retired

High Court judges at Aurangabad will be

signed by the Registrar (Administration)

and countersigned by the medical officer

and then passed by Registrar General.

The Officers shall certify the bills whether

for indoor treatment or for the purchase

of medicines. The bills will be cleared by

the State Government to begin with and

thereafter the Central Government will

reimburse the amount paid by the State

Government. We would like the Central

Government Counsel and the State

Government Counsel to react on this, if

at all there are any difficulties in the

working of this procedure.”

5.The case remained pending before the Court and during

the hearing of the petition on 7

th

July, 2006, it was stated on

Page 17 behalf of the State Government that the Government was in

the process of framing Rules in compliance with the

directions contained in the orders of the Court dated 13

th

October, 2005 and 23

rd

June, 2006.

6.Vide its order dated 17

th

July, 2006, the High Court

directed the State Government to frame Rules within three

months and continued the operation of the interim order

dated 13

th

October, 2005. Pursuant to the directions of the

Court and in exercise of the powers conferred under Section

23D(2) of The High Court Judges (Salaries and Conditions of

Service) Act, 1954 (for short, the ‘Act’), the State of

Maharashtra framed the Rules titled the Maharashtra Retired

High Court Judges (Facilities for Medical Treatment) Rules,

2006 (for short, the ‘draft Rules’). These draft Rules were

submitted before the High Court. Thereafter, when the writ

petition was taken up for hearing, the Amicus Curiae for the

petitioners (retired Judges) suggested a change to be made

in Rule 2(a) of the draft Rules. Rule 2(a) reads as under :

Page 18 “2. Medical facilities for retired High

Court Judges and family members

dependent on them—

(a)Any person who was appointed and

served as a High Court Judge for High

Court of Judicature at Bombay and

settled in the State of Maharashtra

and his family members dependent

upon him shall be entitled whenever

the Central Government Health

Scheme (CGHS) is not available, to

receive the reimbursement of medical

expenses incurred in any hospital

recognized by the State Government

to render whole time medical services

as such person shall be entitled.”

7.Amendment suggested to the above Rule was that the

words ‘shall be entitled whenever the Central Government

Health Scheme (CGHS) is not available’ be substituted by the

words ‘shall be entitled whenever the Central Government

Health Scheme (CGHS) is not availed of’. Initially the

suggestion was opposed on behalf of the State. The Principal

Secretary and RLA, Law and Judicial Department was present

in Court, however, the Secretary, Finance Department was

not. The matter was then deliberated before the Court.

Thereafter, the suggestion made was acceded to and it was

said that they would take concurrence of the Finance

Page 19 Department on the suggested change. The Court, thus,

directed the change in the draft Rules, as suggested. The

High Court vide its judgment dated 15

th

January, 2007

recorded that the CGHS was available only in three cities of

the State of Maharashtra, i.e., Bombay, Nagpur and Pune.

The Court, while noticing the agreed amendment to Rule

2(a), recorded its conclusion and relief as under :

“The learned Amicus Curiae has gone

through the Rules. It is submitted that

these Rules will substantially cover the

grievances as raised by the petitioners.

Since the power conferred on the State

Government is pursuant to Section

23D(2) it will be open to the State

Government to either notify the said

Rules in the forum which they have now

been presented or it is open to the State

Government to amend the G.R. which

provides for medical benefits to sitting

judges and extend the same benefit also

to the retired judge, who are covered by

the draft rules as submitted and which is

substantially the same. It is made clear

that these Rules will apply to the Judges

who were appointed as Judges of this

Hon’ble Court and have since retired and

are settled in the State of Maharashtra

and Goa.”

Page 20 8.While making the Rule absolute, the High Court directed

the State to notify the Rules or to amend the Government

resolution in light thereof. After the pronouncement of the

above judgment and lapse of a considerable period of time,

on 8

th

October, 2007 the State Government filed an

application stating that the counsel and the officer giving

consent for change, by substitution of the words ‘availed of’

in place of ‘available’, did not realise the repercussions of the

amendment and had not obtained the concurrence of the

Finance Department. Therefore, it was contended that the

application should be allowed, the change directed by the

Court in the draft Rules be deleted and the Rules in the

original form be permitted to be notified. This application

was dismissed by a detailed order of the High Court dated

22

nd

July, 2008. The High Court repeatedly noticed that the

CGHS was not available and keeping in view the facts and

circumstances of the case, recorded that there was no

occasion for exercising the review jurisdiction, as the order

did not suffer from any apparent error. The matter was

adjourned on different dates for the State Government to

Page 21 give response to the contentions raised by the Amicus

Curiae. It was also noticed in this order that some State

Governments, including those of U.P. and Andhra Pradesh,

had extended the facilities of medical treatment to the

retired Judges of their respective High Courts. The review

application was thus dismissed as being without any merit.

Thereupon, the State was directed to comply with the orders

of the High Court within two months.

9.Aggrieved from the orders dated 15

th

January, 2007 and

22

nd

April, 2008, the State of Maharashtra has preferred the

present appeal by way of special leave before this Court.

The matter was finally heard at the ‘After Notice’ stage.

10.Before I delve into the issues arising in the present

appeal, it will be appropriate for the court to examine what

kind of a right ‘medical facilities to the judges and/or the

former Judges of the High Court’ is. The Judges of the High

Courts of the respective States are appointed under Article

217 of the Constitution of India (for short “the Constitution”).

Such Judges are appointed by the President by warrant under

Page 22 his hand and seal after consultation with the Chief Justice of

India and the Governor of the State and they hold office till

the age of 62 years subject to the provisions contained in

Article 217 of the Constitution. In terms of Article 221 of the

Constitution, the Judges of each High Court shall be paid

such salaries as may be determined by the Parliament by law

and every Judge shall be entitled to such allowances and to

such rights in respect of leave of absence and pension as the

case may be and as determined from time to time under the

law by the Parliament. Proviso to Article 221 of the

Constitution categorically states that neither the allowances

of a Judge nor his rights in respect of leave of absence shall

be varied to his disadvantage after his appointment.

11.Article 229(3) concerns itself with administrative

expenses, including salaries, allowances and pensions

payable to or in respect of the officers and servants of the

court, which shall be charged upon the Consolidated Fund of

the State and any fees or other monies taken by the court

shall form part of that fund. These are some constitutional

provisions which indicate the constitutional protections in the

Page 23 form of legal rights that are available to the judges of the

High Court. The Indian Parliament enacted The High Court

Judges (Salaries and Conditions of Service) Act, 1954. This

Act provided the conditions of service of sitting judges and

even that of acting judges who had been appointed in terms

of clause (2) of Article 224 of the Constitution. It dealt with

the leave and/or allied subjects thereto such as salaries,

pension, family pension, provident fund and other

miscellaneous items. The miscellaneous items included

travelling allowance, rent free house and medical facilities.

It made a specific provision with regard to medical facilities

available to the former judges of the High Court. Section

23D dealt with this aspect, while Section 23A dealt with the

facilities for medical treatment of the sitting judges. These

provisions read as under:-

“23A. (1). Every Judge and the members

of his family shall be entitled to such

facilities for medical treatment and for

accommodation in hospitals as may from

time to time, be prescribed.

(2) The conditions of service of a Judge

for which no express provision has been

made in this Act shall be such as may be

Page 24 determined by rules made under this

Act.

(3) This section shall be deemed to have

come into force on the 26th January,

1950, and any rule made under this

section may be made so as to be

retrospective to any date not earlier

than the commencement of this section.

xxxxx xxxx

xxxxx

23D(1)Every retired Judge shall, with

effect from the date on which the High

Court Judges (Conditions of Service)

Amendment Act, 1976, receives the

assent of the President be entitled for

himself and his family, to the same

facilities as respects medical treatment

and on the same conditions as a retired

officer of the Central Civil Services,

Class-I and his family, are entitled under

any rules and orders of the Central

Government for the time being in force.

Plot No 37/1, Site IV,

(2) Notwithstanding anything in sub-

section (1) but subject to such conditions

and restrictions as the Central

Government may impose a retired Judge

of the High Court for a State may avail,

for himself and his family, any facilities

for medical treatment which the

Government of that State may extend to

him.”

12.Section 23D of the Act deals with the medical benefits

to which the former Judges of the High Court and their family

Page 25 members would be entitled to. This provision states that

they would be entitled to similar medical benefits as may be

prescribed through appropriate rules by the State and to the

retired Class I Civil Services officers. Sub-section (2) of

Section 23D, in fact, is an exception to Section 23D(1) of the

Act. The non-obstante clause of sub-section (2) makes it

clear that the legislature intended to provide the medical

benefits to the former Judges in terms of the law framed by

the State but with restrictions as may be imposed by the

Central Government. It provides that notwithstanding

anything contained in sub-Section (1), but subject to

conditions and restrictions as the Central Government may

impose, a retired judge of the High Court for the State may

avail for himself and his family, any facility for medical

treatment which the Government of that State may extend

to him. It cannot be disputed and, in fact, has been noticed

in the judgment under appeal before this Court that different

States have different rules to provide medical facilities to the

former judges of their respective High Courts. Article 221

of the Constitution read with the provisions of the Act is

Page 26 indicative of the fact that the framers of the Constitution

envisaged parity of such facilities in the States. Variation in

grant of medical benefits from one High Court to another and

one State to another, besides adding inequality also

enhances the possibility of a service condition being applied

to a former Judge of a High Court adversely. For instance, a

Judge of Court ‘A’, upon his retirement, would be entitled to

the medical benefits provided by the State to the former

Judges of High Court ‘A’. But, if such a Judge is transferred to

High Court ‘B’, he would be entitled to the medical benefits

as allowed by the State to the former Judges of High Court

‘B’. There may be disparity between the medical benefits of

High Court ‘A’ and ‘B’, like the High Court ‘A’ may be

extending the same benefits as that of a sitting Judge while

the High Court ‘B’ may be giving the said benefit to a limited

extent of the CGHS or any other scheme formulated by the

concerned State. This would result in variation in service

conditions to the disadvantage of the Judge concerned, which

is not permissible in law.

Page 27 13.This variation is to the extent that some States/Courts

provide for complete reimbursement while others do not. In

some States there are rules permitting partial

reimbursement, while in some others even the rules have not

been framed to provide for adequate medical facilities. The

non-availability of CGHS is another major concern and

wherever the CGHS is available, availability of its benefits

and impediments in its smooth application are obvious from

the very ineffective implementation of the Scheme. The

CGHS, firstly, is not even available in all the major cities,

much less in and around the rural areas and secondly, the

procedure specified under the scheme is quite complex and

impracticable. The Scheme contemplates prior permission

for referral hospitals. In normal course of sickness, it

requires the Head of the concerned specialty in the hospital

to grant such permission, subject to furnishing of the

requisite documents, which itself may frustrate the purpose

of reference to an outside hospital. In emergencies, one has

to comply with the entire procedure of ex-post facto

approval, which appears to be in order.

Page 28 14.The eligibility criteria and the method in which the

CGHS can be availed of on paper appear to be sound, but

when it comes to practice, things are quite unsatisfactory.

Receiving a medicine, availability of drugs, the rush in the

hospitals, payment of bills under the CGHS are some of the

practical problems that are faced by everyone, of which the

Court can even take a judicial notice. Attempts under the

Scheme have been made by introducing different aspects

like medical audit of hospital bills, holding of claim adalats,

establishment of local advisory committees, decentralization

and delegation of powers etc., but they ultimately do not

serve the purpose of effective and readily available medical

facilities to the concerned persons.

15.The Court cannot ignore the harsh reality that the rates

stipulated under the CGHS and its approved hospitals are

much lower than the prevalent rates for providing such

treatments in other hospitals. Thus, the State employees

and even the former Judges of the Courts have to provide for

the difference in rates from their own pockets, if they take

treatment from other private hospitals. Of course, an

Page 29 attempt has been made by the Central Government while

introducing a specific clause, being clause 15 in the

conditions of tender, relating to validity of CGHS rates which

requires that for the stipulated period, the empanelled

institutions shall not charge more than CGHS rates. But the

stated difficulty will still prevail where CGHS is not in force

and/or there are no empanelled hospitals. In such a

situation, the basic right sought to be protected under the

rules would stand violated.

16. The Court is certainly not oblivious to the problems

faced by the Central Government in this behalf, but that by

itself cannot be reason enough to overlook the practical

problems faced by the people and particularly, the former

Judges of the High Courts. One aspect that deserves

attention is that in the year 1994, the policy in relation to

transfer of Judges at the High Court level was introduced and

has been, thereafter, applied quite frequently. A Judge may

be appointed to one Court, transferred to another and still

another, from where he retires. It results in dual problems to

the former Judge; firstly, in relation to availability of medical

Page 30 facilities and secondly, with regard to reimbursement of the

medical bills. The nature of the right to medical facility is

‘statutory’. It, being a condition of service, cannot be altered

or changed to the disadvantage of the former Judges. Such

is the requirement of law.

17.In normal discharge of his duties, a Judge has to decide

a case in favour and against the Government as well. While

performing his duties in accordance with law, the courts do

pass some orders of severe or serious consequences, against

the State Government or an officer in its hierarchy. The

Courts also deal with penal proceedings under the Contempt

of Courts Act at the level of the higher judiciary. In this

process, the courts are likely to pass orders which may not

be to the liking of the executive hierarchy of the State. In

such circumstances, the possibility of bias against the Judges

in the minds of the Executive cannot be entirely ruled out.

This may have the impact of, if nothing else, lowering the

degree of impartiality and independence of judiciary.

Relevance of Independence of Judiciary

Page 31 18.Another important facet of this statutory right is

relatable to the independence of judiciary. I may refer to

some judgments of this Court, which have dealt with the

independence of judiciary with reference to the Constitution

of India. Referring to the functions of the judiciary, this Court

in the case of S.P. Gupta v. Union of India [(1981) Supp. SCC

87], held:

“…what the true function of the judiciary

should be in a country like India which is

marching along the road to social justice

with the banner of democracy and the

rule of law, for the principle of

independence of the judiciary is not an

abstract conception but it is a living faith

which must derive its inspiration from the

constitutional charter and its nourishment

and sustenance from the constitutional

values. It is necessary for every Judge to

remember constantly and continually that

our Constitution is not a non-aligned

national charter.”

Plot No 37/1, Site IV,

The Court further held:

"the principle of independence of

judiciary is the basic feature of the

Constitution. It cannot remain content to

act merely as an umpire but it must be

functionally involved in the goal of socio-

economic justice. In this judgment, the

Page 32 court also referred to the observations

recorded by Justice V. Krishna Iyer in the

case of Union of India v. Sankalchand

Himatlal Sheth (1977) 4 SCC 193:

“Independence of the Judiciary is not

genuflexion; nor is it opposition to every

proposition of Government. It is neither

Judiciary made to Opposition measure

nor Government's pleasure.”

19.Besides referring to these remarks, the court with great

emphasis noticed the views expressed by Dr. Rajendra

Prasad that the Constitution undoubtedly made clear

provisions for an independent judiciary and observed:

“We have provided in the Constitution for a

judiciary which will be independent. It is

difficult to suggest anything more to make the

Supreme Court and the High Courts

independent of the influence of the executive.

There is an attempt made in the Constitution

to make even the lower judiciary independent

of any outside or extraneous influence. One of

our articles makes it easy for the State

Governments to introduce separation of

executive from judicial functions and placing

the magistracy which deals with criminal cases

on similar footing as civil courts. I can only

express the hope that this long overdue reform

will soon be introduced in the States.”

Page 33 20.In Sankalchand Himatlal Sheth (supra), the Court also

referred to the view of Pt. Jawahar Lal Nehru who said that it

was important that the High Court Judges should not only be

first- rate but should be of the highest integrity, people, who

can stand up against the executive Government and whoever

come in their way. According to Dr. Ambedkar,

independence of judiciary was of the greatest importance

and that there could be no difference of opinion that the

judiciary had to be independent of the executive.

21.In this very judgment, the Court, while referring to the

form of oath prescribed in clause VIII, Third Schedule of the

Constitution, for a Judge or a Chief Justice of the High Court

also noticed that it requires him to affirm that he will perform

the duties of his office “without fear or favour, affection or ill

will”. The words “without fear or favour” have some

significance. Relevancy of such expressions is traceable to

various constitutional provisions. In terms of Article 202(3)(d),

the expenditure in respect of the salaries and allowances of

High Court Judges is charged on the Consolidated Fund of

each State and Article 112(3)(d)(iii) enunciates that pensions

Page 34 payable to the High Court Judges are charged on the

Consolidated Fund of India. By virtue of Article 113(1) the

pensions are not subject to the vote of the Parliament. The

court also noticed: “Now the independence of the judiciary is

a fighting faith of our Constitution. Fearless justice is a

cardinal creed of our founding document. It is indeed a part

of our ancient tradition which has produced great Judges in

the past. In England too, from where we have inherited our

present system of administration of justice in its broad and

essential features, judicial independence is prized as a basic

value and so natural and inevitable it has come to be

regarded and so ingrained it has become in the life and

thought of the people that it is now almost taken for granted

and it would be regarded an act of insanity for anyone to

think otherwise.”

22.Besides this, the court also noticed that the framers of

the Constitution were aware of this constitutional

development in England and were conscious of our great

tradition of judicial independence and impartiality and they

realized that the need for securing the independence of

Page 35 judiciary was even greater under our Constitution than it was

in England.

23.At this stage, reference to the judgment of this court in

the case of Union of India v. R. Gandhi, President Madras Bar

Association [(2010) 11 SCC 1], with reference to

independence of judiciary would be proper and, in fact,

inevitable. A five-Judge Bench of this Court not only observed

but formatively stated:

“…impartiality, independence, fairness

and reasonableness in decision making

are the hallmarks of judiciary. If

“Impartiality” is the soul of the judiciary,

“Independence” is the lifeblood of the

judiciary. Without independence,

impartiality cannot thrive. Independence

is not the freedom for Judges to do what

they like. It is the independence of

judicial thought. It is the freedom from

interference and pressures which

provides the judicial atmosphere where

he can work with absolute commitment

to the cause of justice and constitutional

values.”

(emphasis supplied)

Page 36 24.In a recent judgment of this Court in the case of Brij

Mohan Lal v. Union of India [(2012) 6 SCC 502], the Court

held as under:

“The independence of the Indian

judiciary is one of the most significant

features of the Constitution. Any policy or

decision of the Government which would

undermine or destroy the independence

of the judiciary would not only be

opposed to public policy but would also

impinge upon the basic structure of the

Constitution. It has to be clearly

understood that the State policies should

neither defeat nor cause impediment in

discharge of judicial functions. To

preserve the doctrine of separation of

powers, it is necessary that the

provisions falling in the domain of judicial

field are discharged by the judiciary and

that too, effectively.”

25.Thus, various Benches of different strength (Seven

Judge Bench, Five Judge Bench and Two Judge Bench) of this

Court have consistently held that independence of judiciary

is a part of the basic structure of the Constitution and cannot

be permitted to be adversely impacted by policy-making or

even by legislative power. The constitutional ethos of

Page 37 independent judiciary cannot be permitted to be diluted by

acts of implied intervention or undue interference by the

executive in the impartial administration of justice, directly

or indirectly. This Court in the case of Supreme Court

Advocates-on-Record Association v. Union of India [(1993) 4

SCC 441], in unambiguous terms stated: “Independence of

judiciary has always been recognised as a part of the basic

structure of the Constitution.” It is a known fact that a large

part of the litigation in courts is generated from people being

aggrieved against the governance, action and inaction of the

Government including the executive and/or its

instrumentalities. Thus, the courts must be kept free from

any influence that the executive may be able to exercise by

its actions, purely executive or even by its power of

subordinate legislation. Where this court refers to

independence, fairness and reasonableness in decision-

making as the hallmarks of judiciary, there it also states

impartiality as one of its essentials. Though, what is most

important is the independence of judiciary, its freedom from

interference and pressure from other organs of the State.

Page 38 The Courts and Judges, thus, must be provid Plot No 37/1,

Site IV,ed complete freedom to act, not to do what they like

but to do what they are expected to do, legally and

constitutionally and what the public at large expects of

administration of justice. If the State is able to exercise

pressure on the Judges of the High Court by providing

arbitrary or unreasonable conditions of service or altering

them in an arbitrary manner, it would certainly be an act of

impinging upon the independence of judiciary. Of course,

what is put forward as part of the basic structure must be

justified by reference to the provisions of the Constitution.

When one looks into the scheme of our Constitution and the

doctrine of separation of powers, there are many Articles,

some of which I have already referred to, which clearly show

that independence of the judiciary was of utmost concern

with the framers of the Constitution. Such intent of the

framers is not only ingrained into the ethos of our

Constitution but is also explicitly provided for, even in the

Directive Principles of the Constitution. Reference in this

regard can usefully be made to Article 50 of the Constitution,

Page 39 which requires the State to separate the judiciary from the

executive in public services of the State. This Article, with

the passage of time, has turned into a constitutional

mandate rather than a mere constitutional directive.

26.For the judiciary to be impartial and independent and to

serve the constitutional goals, the Judges must act fairly,

reasonably, free of fear and favour. The term ‘fear’ as

explained in various dictionaries, means ‘an unpleasant

emotion caused by threat of danger, pain or harm; a feeling

of anxiety regarding the likelihood of something unwelcome

happening’. (Concise Oxford English Dictionary, Eleventh

Edition Revised) On the other hand, ‘favour’ means ‘approval

or liking; unfair preferential treatment, inclination, prejudice,

predilection (Concise Oxford English Dictionary, Eleventh

Edition Revised and Black’s Law Dictionary, Eighth Edition).

The necessity of acting free of fear or favour is to maintain

impartiality and independence of the judicial decision-making

process. A five-Judge Bench of this court, very affirmatively

and to put the matters beyond ambiguity, in the case of

Page 40 State of Bihar v. Bal Mukund Sah [(2000) 4 SCC 640], held

as under:

“…We may also usefully refer to the

latest decision of the Constitution Bench

of this Court in Registrar (Admn.), High

Court of Orissa v. Sisir Kanta Satapathy

wherein K. Venkataswami, J., speaking

for the Constitution Bench, made the

following pertinent observations in the

very first two paras regarding Articles

233 to 235 of the Constitution of India:

“An independent Judiciary is one of

the basic features of the

Constitution of the Republic. Indian

Constitution has zealously guarded

independence of Judiciary.

Independence of Judiciary is

doubtless a basic structure of the

Constitution but the said concept of

independence has to be confined

within the four corners of the

Constitution and cannot go beyond

the Constitution.”

XXX XXX XXX

[T]he mere fact that Article 309 gives

power to the Executive and the

Legislature to prescribe the service

conditions of the Judiciary, does not

mean that the Judiciary should have no

Page 41 say in the matter. It would be against the

spirit of the Constitution to deny any role

to the Judiciary in that behalf, for

theoretically it would not be impossible

for the Executive or the Legislature to

turn and twist the tail of the Judiciary by

using the said power. Such a

consequence would be against one of the

seminal mandates of the Constitution,

namely, to maintain the independence of

the Judiciary.”

27.When I discuss the conditions of service of judiciary,

they have to be reasonable and free of arbitrariness.

Arbitrariness in the power of the State to make unfair

conditions of service for the sitting or the former Judges of

the High Court would tantamount to putting a kind of

pressure on the judiciary, requiring them to run to the

Government for every small sickness or for reimbursement of

expenditure incurred on some major ailment. The powers

vested in the State, as aforenoticed, are not to cause fear or

favour or any pressure in the mind of the judiciary, lest the

sitting Judges, after retirement, be dependant upon the

kindness of the executive. This element of arbitrariness or

mercy must be eliminated so as to give judiciary its deserved

Page 42 independence and freedom to work effectively in the public

interest and for attainment of the constitutional goals. Any

unreasonable restriction would amount to interference with

the doctrine of impartiality and fairness applicable to the

judiciary in all events.

28.Having discussed, in some elaboration, the

constitutional colour of this statutory right, I must refer to the

facts of the present case. I do not see any reason for the

State of Maharashtra to have withdrawn its consent for

substitution of the words ‘availed of’ in place of ‘available’. It

had ample time at its disposal, as various matters came up

before the Court on a number of hearings, particularly prior

to such substitution. It is expected of the State to act in

accordance with the accepted canons of governance and not

to render the judicial proceedings ineffective and

inconclusive. The stand of the Government ought to have

been in favour of a condition which would bring judicial

independence, impartiality and fearlessness to the fore

rather than its restriction, which apparently was of

unreasonable nature. Is it the fault of the citizens or that of

Page 43 the Government servants that the CGHS Scheme is not

available in a large number of cities in India and wherever it

is available, it is proving ineffective, as people fail to receive

their reimbursement claims for months together, despite

instructions issued by the concerned Ministry? It will be

unfortunate if a sitting Judge has to be continuously under

the fear as to what his medical facilities will be after

retirement. His service conditions should be definite and

favourable to building the public confidence in the

administration of justice rather than bringing

unreasonableness and arbitrariness in the State action. The

Ministry of Health and Family Welfare has issued a circular

dated 14

th

November, 2011 attempting to streamline various

aspects of implementation of the CGHS Scheme which itself

shows that the scheme suffers from various infirmities and

shortcomings and is not proving to be effective. The impact

of the circular would have to be seen over a period, to realize

its benefits, if any. Even in the circular issued by the same

Ministry dated 27

th

April, 2011, which opens with the words

“keeping in view the difficulties being faced by the pensioner

Page 44 CGHS beneficiaries residing in non-CGHS covered areas”

certain clarifications were issued. The basic problem that

arises is with regard to the emergency cases, specialized

treatments and most concernedly the reimbursement of the

bills and the process of verification of such matters. The

procedure is so complex and results in such inordinate delays

that it becomes difficult for the beneficiaries to continue their

treatment faithfully and as advised.

29.Lack of instructions from the Finance Department was

pleaded to be the sole ground for seeking review of the

judgment of the High Court. Inter departmental dealing is a

matter of internal management of the Government. The

Government is represented as a unit before the Courts. How

they manage their internal affairs is for them to decide. The

High Court rightly held that it was not an error apparent on

the face of the record, justifying the review or satisfying the

ingredients of Order XLVII Rule 1 of the Code of Civil

Procedure, 1908. Substitution of the word ‘available’ by

‘availed of’ does not bring any prejudice in law. On the

contrary, it would be in conformity with the constitutional

Page 45 requirements of equal treatment of all Judges. It is ultimately

a matter relating to medical treatment, which nobody claims

out of choice but it always emerges from necessity. Would it

not be fair and reasonable on behalf of the State to take a

stand which is in consonance with judicial independence and

impartiality rather than subjecting a Judge to the pressure of

worrying about the availability of medical facilities during the

retirement era? It will be in line with the constitutional

mandate of separation of powers and independence of

judiciary that the medical facilities are permitted to be

availed by the Judges/former Judges on the concept of

‘availed of’ instead of where there are ‘available’ with

reference to the CGHS. Furthermore, the bills of the Judges

should be submitted with the Registrar General of the

concerned High Court and should be dealt with and paid in

accordance with the rules of the High Court. The State

Governments should provide a due head of expenditure for

this purpose in the budget of their respective High Courts.

This will help in expeditious payments and also ensure that

the Judges would not have to run after the members of the

Page 46 executive for clearance of their dues and the availability of

medical facilities for them and their dependent family

members would not depend upon the whims of the

concerned authority.

30.Availability of uniform medical facilities for the former

Judges in the entire country can also be substantially justified

on another ground that there exists transfer policy of High

Court Judges. This policy has been in force since 1994 and,

therefore, this requires that the entitlement of former Judges

and their dependent family members should not vary from

place to place. Uniformity would remove another

apprehension in the minds of the Judges as to the Court from

which they retire. Presently, it is clear even from the various

documents submitted and placed on record by the learned

Additional Solicitor General that there are different benefits

in different States and, thus, the medical benefits at the

Centre as well as between the States are comparatively and

considerably different. This disparity leads to a patent

discrimination which should not be permitted. It will be in

the interest of all concerned, including the State

Page 47 Governments, that complete uniformity is maintained in

relation to availability of medical facilities in terms of Section

23D of the Act and procedure of reimbursement of medical

bills of the former Judges of the High Courts. The Former

Judges of the High Courts should be placed at parity with the

sitting Judges of the High Courts. Thus, it will be appropriate

for the competent authority to frame/amend the rules in

accordance with this judgment and the constitutional

mandate.

31.Keeping in view the doctrine of separation of powers

and independence of judiciary, which are the structural ethos

of our Constitution, it is expected that the legislative power

and more particularly, the subordinate legislative power,

ought not to be exercised so as to obtrude these basic

fundamental principles. The exercise of subordinate

legislative power, which by necessary implication,

entrenches upon the independence of judiciary, would have

to be decided on the touchstone of it being violative or

otherwise, of the basic structure of the Constitution.

Page 48 32.In order to ensure the absolute independence of

judiciary, in the interest of administration of justice and for

the Judges to act free of any apprehensive attitude and to

provide complete certainty to the service conditions of the

former Judges of the High Courts, I dispose of the above

appeals and pass the following order-cum-directions:

a)I do not find any merit in the present appeals.

b)Rule 2(a) of the draft rules shall remain in the form as

directed by the High Court. The word ‘available’ shall

stand substituted by the words ‘availed of’. The State of

Maharashtra is hereby directed to notify these rules

forthwith.

c)Henceforth, there shall be complete uniformity in the

‘grant of medical benefits’ to the former Judges of

various High Courts.

d)It may not only be desirable but necessary for the

Centre and the State Governments to amend and alter

the existing rules. If no rules are in force, to frame the

rules on such uniform lines.

Page 49 e)In relation to the medical facilities, the former Judges of

the High Courts would be placed at parity with the

facilities available to the sitting Judges and their

dependent family members. Providing such benefit and

bringing uniformity in the rules shall be in the interest of

the State administration as well as administration of

justice.

f)All the medical bills of the former Judges of various High

Courts shall be submitted to the Registrar General of

the concerned High Court, who shall, subject to

approval of the Chief Justice of that Court and in

accordance with the rules in force, pay such bills (upon

due scrutiny) to the former Judges.

g)The Union Government and the State Governments are

directed to provide such ‘head of expenditure’, being

part of the High Court budget of the respective High

Courts for reimbursement of medical bills of the former

Judges. In other words, the payment would be directly

made by the High Court to the former Judges and it, in

turn, would be reimbursed by the State Government.

Page 50 h)All the former Judges of the High Courts would be

entitled to receive medical facilities from the hospitals

so empanelled by the Central or the State

Governments, as the case may be.

i)Till appropriate rules are framed by the appropriate

authority, these directions shall remain in force and

shall be abided by the executive

33.The appeals are disposed of in the above terms.

However, there shall be no orders as to costs.

...….…………................J.

(Swatanter Kumar)

New Delhi;

December 13, 2012

Page 51 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 9020-9021 OF 2012

(Arising out of SLP (C) Nos. 15739-15740 of 2008)

The Secretary, Ministry of Health & Family

Welfare, Government of Maharashtra … Appellant

Versus

S.C. Malte & Ors. … Respondents

O R D E R

Since there has been a difference of opinion between us

in these Civil Appeals, the Registry will place these Civil

Appeals before My Lord the Chief Justice of India to constitute

a larger Bench to hear and decide these Civil Appeals.

.……………………….J.

(A. K. Patnaik)

.……………………….J.

(Swatanter Kumar)

New Delhi,

December 13, 2012.