SACHIDANANDA ACHARYA Vs. UNION OF INDIA

JUDGEMENT

(1.) These two writ applications have been filed by seven retired Judges of this Court including the retired Chief Justice of Sikkim High Court, five of whom are residing within the municipal limits of Cuttack and two others are residing within the municipal limits of the capital city of Bhubaneswar. The prayer in both these writ applications is that the Central Government should provide medical facilities to these retired Judges of this Court under the Central Government Health Scheme (in short, C.G.H.S.), which facilities have been extended to those retired Judges who are residing in 15 different cities enumerated in Annexure of Annexure 2 series, where such scheme is already in vogue. The main ground of attack in both these writ applications is that providing such medical facilities in respect of those retired Judges residing in the 15 cities enumerated in Annexure 1 and not providing the same in respect of other retired Judges who-are residing in cities other than those 15 cities is grossly discriminatory and there is no reasonable nexus for such hostile discrimination.

(2.) The petitioners have averred that the conditions of service of the Judges of the High Court are governed by the provisions of the High Court Judges (Conditions of Service) Act, 1954 (in short, the Act) and the said Act was amended by the Amendment Act of 1976 (Central Act 35 of 1976). Under the amended provision, Section 23-D was inserted into the statute book which provides for medical facilities for retired Judges. The petitioners having retired after the Amendment Act coming into force claim to be entitled for themselves and their family members to the same facilities in respect of medical treatment and on the same conditions as the retired officers of the Central Civil Services, Class I and their family members are entitled to under any rules and orders of the Central Government from time to time. It has been further averred that under sub-section (2) of Section 23-D, though a retired Judge of a 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, yet the Government of Orissa has not extended any facilities to the retired Judges of the Orissa High Court. The Government of India in the Department of Health and Family Welfare had taken a decision in July, 1987, extending Central Government Health Scheme facilities to Central Government pensioners in Delhi, Bombay, Calcutta, Madras and Poona, which decision has been annexed as Annexure 2 series to the writ application, and under the said decision, the Central Government pensioners in the aforesaid 15 cities who were eligible for availing C.G.H.S. facilities while in service will have the option to get their names registered with any of the dispensaries in a city where the C. G. H. Scheme is functioning irrespective of the fact as to whether they are residing in that city or not. The Government of India in the Ministry of Law and Justice had written to all the Chief Secretaries of all State Governments and Union Territories to extend the medical facilities to the High Court Judges retiring from one High Court of a State and settled down in another State in terms of sub-section (2) of Section 23-D of the High Court Judges (Conditions of Service) Act, as amended by the Amendment Act of 1976. But the State of Orissa has not extended any such facilities to the retired Judges of this Court or of the other High Courts residing within the State of Orissa. It has been further averred that the Secretary to Government of India, Ministry of Health and Family Welfare Department, on being persuaded by the Chief Justice of India, formulated a Scheme and submitted the same for the approval of the Ministry of Law and Justice under which Scheme the retired Judges of the Supreme Court and High Courts not residing within the 15 cities where the C.G.H. Scheme is operating could get some medcial attendants and other medical facilties by way of reimbursement of the medical expenses through the respective High Courts of the States where the retired Judges are staying. But that scheme was nor approved by the Ministery of Law and Justice. The said scheme had been placed before the Chief Justices Conference held it August-September, 1991 and the Conference had approved the Scheme and a resolution had been passed to that effect which resolution had been sent to the Ministry of Law Justice and Company Affairs and the Chief Justice of India had written a personal letter to the Minister, Law and Justice, on 17th of February, 1992, requesting him to approve the scheme. The letter of the Chief Justice of India has been annexed as Annexure 3. The Minister concerned, while appreciating the need for providing medical facilities to the retired High Court Judges did not -approve the scheme on the ground that it would have wide repercussions and serious financial implications. A copy of reply of the Minister Law and Justice, to the Chief Justice of India has been annexed as Annexure 4. Having lost all hopes of getting the minimum medical facilities, these seven petitioners have approached this Court.

(3.) Pursuant to notice issued by this Court, the Union Government through the Under Secretary to the Department of Law and Justice, has filed a counter affidavit stating therein that though medical facilities have been extended to the retired Judges under the High Court Judges (Conditions of Service) Act, 1954, and, in fact, those retired Judges residing in the 15 cities where the Central Government Health Scheme is in operation are enjoying the facilities, yet it is not possible to extend those facilities to other Judges residing in other cities on account of financial constraints. In other words, without ascribing any reason for the views taken by the Minister, Law and Justice, in his reply to the request of the Chief Justice of India, referred to earlier and without giving any data with regard to the financial constraints and the financial implication, the concerned officer of the Union Government has merely quoted the language used by the concerned Minister in not accepting the request-of the Chief Justice of India. It has further been averred that the decision to extend the Central Government Health Scheme facilities to the 15 cities and not to any other city is a policy decision of the Union Government and, therefore, the retired Judges residing in cities other than the cities where the C.G.H. Scheme is in operation cannot complain of any discrimination. We are indeed surprised to find that the opposite parties in the counter affidavit filed have made a statement that some of the retired Judges are accepting assignments like arbitrations, members of commissions of inquiry and members of tribunals after retirement since such acceptance of appointments after retirement is totally irrelevant in the context of adjudicating whether the decision of the Union Government in not extending the medical facilities to those retired Judges residing beyond the 15 cities can be held to be discriminatory in nature.