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WELCOMING DURMUKHI UGADI

Pensioners & Family Pensioners by Ugadi may get Normal Monthly Pension Under FR-33 along with existing Cadre Staff working Saying GOOD-BYE to Modified Parity which inflicted DROP-IN-Pension & Get Justiciable Pension. 

Right2Health may also be ACHIEVED shortly & Fully on par with Employees 

& Other Central Govt Pensioners availing CGHS-ECHS etc. benefits.

On 13-01-2016 Govt appointed Shri P.K.Sinha IAS & Cabinet Secretary as Head of Committee of Secretaries ( C O S ) to Review & Suggest 

7th CPC Report Recommendations IMPLEMENTATION Process.

Today A News Item Appeared that the GOI thro DOPT has called for List of Eligible                                     IAS/IPS/IRS/IPo.S etc having 30 years & 25 years of service for consideration 

as Secretaries / Additonal Secretaries before February 29th  

after clearance by Central Vigilance Commissioner (CVC)

Brief history of the case & Extracts From Judgement are furnished below.

Shri Shankar Lal Sharma ( Applicant OA for CAT Chandigarh ) All India Radio  Shimla

Requested for reimbursement of medical bill of`1,79,559/with interest @25% per annum.

( In Prime Heart and Vascular institute, Mohali ) A reply was received as under. 

“ This has a reference to your notice dated 23.9.08 and this office regd. Letter of even No. SML10(3) /2008dated 20.11.08, regarding reimbursement of medical claims to Shri ShankerLal Sharma, resident of Shanker Niwas, Middle Sangti, Summerhill, Shimla keeping in view the instruction contained in the enclosed Ministry of Health & Family Welfare order, the medical claim of Shri Shanker Lal Sharma cannot be reimbursed..”

Feeling aggrieved, Pensioner approached the learned Central Administrative Tribunal, Chandigarh Bench by way of an Original Application No. 283HP2009, seeking redressal. The petitioner Union of India filed a detailed reply to the Original Application.

….. the Ministry of Health & Family Welfare, New Delhi clarified the position and also made available a copy of OM, dated 20.08.2004, which clarified the entire issue about extension of CCS Medical Attendance Rules, 1944 to Central Government pensioners residing in non CGHS areas. There is also a reference of letter, dated 25.02.2000 in the reply. It was specifically stated that the case of the respondent was not covered by the judgment, dated 13.03.2008, rendered by the Hon'ble High Court of Punjab & Haryana in CWP No. 6559 of 2006, titled as Mohinder Singh Vs. UOI. The learned Central Administrative Tribunal, Chandigarh Bench, relying upon the judgment of Hon'ble High Court of Punjab & Haryana in CWP No. 6559 of 2006, titled as Mohinder Singh Vs. UOI., allowed the Original Application on 02.06.2010 and ordered the Union of India to consider the claim of the respondent for reimbursement of medical expenditure incurred by him for his treatment in Prime Heart and Vascular institute, Mohali at the rates fixed by the Central Government under the rules or the actual expenditure, whichever was less and the claim of the respondent for follow up treatment was ordered to be considered under the rules by the Union of India. Thereafter, a speaking order was passed by the Head of Office, All India Radio, Shimla on 07.12.2010 vide Annexure P6. Respondent also filed a Contempt Petition for the implementation of judgment, dated 02.06.2010 and thereafter the present petition was filed assailing the judgment, dated 02.06.2010, rendered by the learned Central Administrative Tribunal, Chandigarh Bench in Original Application No. 283HP2009, dated 02.06.2010.

4. The sum and substance of the grounds taken in the present petition is that O.M. dated 05.06.1998 was only a departmental communication during the process of consultation and was not meant to be a final order. It was also stated in Para11 of the petition that a Special Leave to Appeal (Civil) CC 9939/2004 titled as Union of India and another Vs. Prabhakar Sridhar Bapat raising an identical issue was pending before the Hon'ble Supreme Court, wherein also the issue relating to the scope and effect of OMs dated 5.6.1998 and 20.8.2004 as well as the non applicability of the CS(MA) Rules to pensioners in non CGHS areas was in question. The copies of the orders passed by the Hon'ble Supreme Court have been placed on record staying the Contempt proceedings in identical matters. The relevant portion of the grounds taken in the writ petition reads thus:

the equality clause figured in the draft list of fundamental principles of social policy. But ultimately a division of the fundamental rights into justiciable and nonjusticiable rights was agreed upon by the Constituent Assembly and the former were designated as fundamental Rights" and the latter as "directive Principles of State Policy".

The Hon’ble Judges quoted various Case Laws and views of Jawaharlal Nehru, Vallabhai Patel, Gajendragadkar, Chinnappareddy in D.S.Nakara Case, NarendrakumarMaheswari against discrimination to ensure equity etc. etc.  Further on 42nd Constitution & Draft Constitution and a large No. of Case Laws were quoted and discussed in the Judgement vividly. Including Indira Gandhi Nehru and Rajnarain Case Law.

“Justiciable” and “Nonjusticiable” detailed in two parts of the constitution were meant for under Fundamentals & Directive Principles of State Policy for the New States (Countries) to full Rights of Citizens basing on priorities.  

*Thanks to Hon’ble Narendra Modi – Hon’ble PM to address these two parts under “Start-Up” & “Stand-Up”  respectively & simultaneously in a short span of time mobilising the required resources Come-What-May enthusiasm in the Made-For-India Motto. Emphasis Mine.

(* Please go through the Judgement for full details of discussions recorded).

40. Their Lordships of the Hon'ble Supreme Court in Steel Authority of India Ltd. and others Vs. National Union Waterfront Workers and others (2001) 7 SCC 1 have held the Preamble to the Constitution is the lodestar and guides those who find themselves in a grey area while dealing with its provisions. It is now well settled that in interpreting a beneficial legislation enacted to give effect to the Directive Principles of State Policy which is otherwise constitutionally valid, the consideration of the Court cannot be divorced from those objectives. Their Lordships have held as under:

“9. After the advent of the Constitution of India, the State is under an obligation to improve the lot of the workforce. Article 23 prohibits, inter alia, beggar and other similar forms of forced labour. The Directive Principle of State Policy incorporated in Art. 38 mandates the State to secure a social order for promotion of welfare of the people and to establish an egalitarian society. Art. 39 enumerates the principles of policy of the State which include welfare measures for the workers. The State policy embodied in Art. 43 mandates the State to endeavour to secure, by a suitable legislation or economic organisation or in any other way for all workers, agricultural, industrial or otherwise, work a living wage conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities. Art. 43A enjoins on the State to take steps by suitable legislation or in any other way to secure the participation of workers in the management of undertaking, establishment, or other organizations engaged in any industry. The fundamental rights enshrined in Arts. 14 and 16 guarantee equality before law and equality of opportunity in public employment. Of course, the preamble to the Constitution is the lodestar and guides those who find themselves in a grey area while dealing with its provisions. It is now well settled that in interpreting a beneficial legislation enacted to give effect to directive principles of the state policy which is otherwise constitutionally valid, the consideration of the Court cannot be divorced from those objectives. In a case of ambiguity in the language of a beneficial labour legislation, the Courts have to resolve the quandary in favour of conferment of, rather than denial of, a benefit on the labour by the legislature but without rewriting and/or doing violence to the provisions of the enactment. :::

The expression 'life' in Article 21 does not connote merely physical or animal existence. The right to life includes right to live with human dignity. This Court has in numerous cases deduced fundamental features which are not specifically mentioned in Part III on the principle that certain unarticulated rights are implicit in the enumerated guarantees. For example, freedom of information has been held to be implicit in the guarantee of freedom of speech and expression. In India, till recently, there is no legislation securing freedom of information. However, this Court by a liberal interpretation deduced the right to know and right to access information on the reasoning that the concept of an open government is the direct result from the right to know which is implicit in the right of free speech and expression guaranteed under Article 19(1)(a).

The Seventh Central Pay Commission constituted vide notification, dated 28.02.2014, has also strongly recommended the introduction of Health Insurance Scheme for Central Government employees and pensioners. In the interregnum, for the benefit of pensioners residing outside the CGHS areas, the Commission recommended that CGHS should empanel those hospitals which are already empanelled under CS(MA)ECHS for catering to the medical requirements of these pensioners on a cashless basis. The Commission has also recommended that the remaining 33 postal dispensaries should be merged with CGHS and all postal pensioners, irrespective of their participation in CGHS while in service, should be covered under CGHS after making requisite subscription.

52. It is the prime responsibility of the State Government to protect health and vigour of retired Government officials, this being their fundamental right under Article 21, read with Articles 39(3), 41, 43, 48A of the Constitution of India. The steps should be taken by the State to protect health, strength and vigour of the workmen. Non providing of postretirement medical care to retired Government official in a city not covered by CGHS at par with in service employee would result in violation of Article 21 of the Constitution of India. Moreover, employees need medical care most after their retirement. The State cannot call its own actions as wrong. We have clarified and explained O.M. dated 20.08.2004 and it is made clear that all the Central Government pensioners residing in nonCGHS areas would be covered either under the CS(MS) Rules, 1944 or CGHS as per their option to be sought for by the Central Government. In order to avoid litigation, this judgment shall apply to all the retired Government officials residing in nonCGHS areas. There should be equality of health benefits to retirees as well in their evenings of life. There cannot be any discrimination while extending the social benefits to in service and retirees. It is the prime responsibility of the State to protect the health of its workers. In view of the phraseology employed in O.M. dated 05.06.1998, Note 2 appended to Rule 1 is read down to extend the benefit of CS(MA) Rules, 1944 to retired Government officials residing in nonCGHS areas to save it from unconstitutionality and to make it workable. The higher Courts have to evolve new interpretive tools in changing times. The neo capitalism may concentrate wealth in the hands of few persons which would be contrary to the philosophy of the Constitution of India. Right to health is a human right. The action of the petitionerUnion of India not to reimburse the medical bills to the respondent and also not giving option to him and similarly situate persons residing in a city not covered under CGHS as per O.M. dated 5.6.1998 to either opt for CGHS Scheme or CS(MA) Rules, 1944, is illegal, arbitrary, capricious, discriminatory, thus, violative of Articles 14, 16 and 21 of the Constitution of India. The decision in matters pertaining to the health of the employee should be taken with utmost humane approach. 

53. Ordinarily we would have ordered the retired Government officials to refund the amount already received by them, but taking into consideration that this would be oppressive and cause undue hardship to them, we order the Union of India not to make recoveries from the respondent and similarly situate persons residing in nonCGHS areas in the event of their opting for CS(MA) Rules or CGHS.

54. Accordingly, the writ petition is dismissed. However, the Union of India is directed to eek the option from the respondent and similarly situated retired employees residing in non GHS area For medical coverage either under CGHS Scheme or under CS(MA) Rules, 1994 as per Office Memorandum, dated 05.06.1998 within a period of six months. Henceforth, the pensioners should be given one time option at the time of their retirement for medical coverage under the CGHS Scheme or CS(MA) Rules, 1994. The Union of India is also directed to release a sum of Rs.1,79,559/incurred by the respondent on his treatment and a sum of Rs.20,000/incurred by the respondent towards post operation follow up, medicines and transportation charges within a period of three months from today, failing which, the respondent shall be entitled to interest @12% per annum. The miscellaneous application(s), if any, also stand(s) disposed of. No costs. 

“Salus populi suprema lex esto The health of the people should be supreme law”.

(Rajiv Sharma)​​​(Sureshwar Thakur)

Judge                                                   Judge

December 28, 2015

(bhupender)