Union Of India (Uoi) Through Secretary … vs T.S. Oberoi S/O Lt. Shri Gurmuksh Singh … on 7 November 2003

Delhi High Court
Union Of India (Uoi) Through Secretary … vs T.S. Oberoi S/O Lt. Shri Gurmuksh Singh … on 7 November, 2003
Author: Madan B. Lokur
Bench: Madan B. Lokur
JUDGMENT

Madan B. Lokur, J.

1. The Intervenor is the wife of late Mr. Justice Maharaj Krishan Chawla who passed away on 14th March 2002. Earlier, Justice Chawla was appointed a Judge of this Court and retired on 5th January, 1991.

2. During the period that Justice Chawla was a Judge of this Court, he was entitled to avail medical facilities as provided by the second proviso to Rule 2 of the High Court Judges Rules, 1956 (for short the Rules). This reads as under:-

“2. Conditions of service in certain cases : The conditions of service of a Judge of a High Court for which no express provision had been made in the High Court Judges (Conditions of Service) Act, 1954, shall be, and shall from the commencement of the Cnstitution be deemed to have been determined by the rules for the time being applicable to a member of the Indian Administrative Services holding the rank of Secretary to the Government of the State in which the principal seat of the High Court is situatd.
Provided xxx xxx xxx Provided further that in respect of facilities for medical treatment and accommodation in hospitals :-
(a) xxx xxx xxx
(b) in the case of a Judge, other than the Chief Justice, of the Delhi High Court and the Punjab & Haryana High Court, the rules and the provisions as applicable to a Union Deputy Minister shall apply;
(c) xxx xxx xxx
Provided also xxx xxx xxx”

3. Learned counsel for the parties have not been able to show us the “rules and the provisions” applicable to a Union Deputy Minister. However, there is no dispute that a Union Deputy Minister is unconditionally entitled to medical facilities including those provided under the Central Government Health Scheme (for short CGHS). As in the case of a Union Deputy Minister, provision for medical facilities for Judges of the Delhi High Court is unconditional inasmuch as there does not seem to be any requiremet, and indeed no such requirement has been pointed out by learned counsel for the parties, to suggest that a Union Deputy Minister or a Judge of the Delhi High Court is required to make monthly contributions to the CGHS to avail medical facilities.
4. From the above, it is quite clear that it was not necessary for Justice Chawla to enroll as a member of the CGHS nor was he required to make any contribution to the CGHS during the period that he was a Judge of the Delhi High Court.
5. It seems that after his retirement, Justice Chawla did not avail any medical facilities under the CGHS, though he was entitled to them as provided by Section 23D of the High Court Judges (Salaries and Conditions of Service) Act, 1954 (for short the Act).
6. Section 23D of the Act reads as follows:-
“23D. Medical facilities for Retired Judges.
(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 famil, to the same facilities as respects medical treatment and on the same conditions as a retired officer of the Central Civil Services, Class I (Group A), and his family, are entitled under any rules and orders of the Central Government for the time beingn 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.”
7. Justice Chawla, unfortunately, fell ill on or about 13th December 2001 and had to be admitted to Indraprastha Apollo Hospital in New Delhi. He remained hospitalized in the said hospital till 31st January 2002. Thereafter he was shifted to Sir Ganga Ram Hospital, New Delhi, where he remained till his demise on 14th March 2002.

8. During his hospitalization Justice Chawla became a life member of the CGHS vide Token No. P-061284 dated 8th March 2002 and was duly issued a CGHS card.

9. The Intervenor claims reimbursement of all medical expenses incurred during the hospitalization of Justice Chawla. The Union of India has controverter her entitlement to a limited extent in its affidavit dated 26th August 2003. According to the affidavit “? since Justice Chawla has become Life Member from 8.3.2002, thus from that day onwards he is eligible for CGHS benefits.” There is, therefore, no dispute raised by the Union of India that if the Life Membership of Justice Chawla relates back to theate of his hospitalization from 13th December, 2001 then the Intervenor would be entitled to reimbursement limited to the period thereafter.

10. Thus, the narrow controversy that we are required to decide is whether the benefit of Life Membership of the CGHS given to Justice Chawla operates with effect from a date prior to 8th March 2002.

11. The submission of the learned Central Government Standing Counsel was that for availing medical facilities under the CGHS, Justice Chawla should have obtained life membership by paying lump sum fee to the CGHS as per the Scheme himself. It is the case of the Union of India that since Justice Chawla had failed to become life member immediately on his retirement, he cannot avail of the benefits under the Scheme except for the period from 8th March, 2002 onwards when he became a life member of the CGHS

12. The learned Central Government Standing Counsel fails to appreciate that the position of a retired Judge of any of the superior Courts is different from a retired Civil Servant. It is well known that during his tenure as a Judge of a High Court he holds a position under the Constitution. By virtue of his status as a Judge of a High Court, he is entitled to medical facilities, including those provided by the CGHS. A Judge of a High Court is not required to make any contribution for availing facilties under the CGHS unlike a Civil Servant. One of the conditions of service of a Judge of a superior Court is that the State is under an obligation to provide him medical facilities as mentioned in Rule 2 of the Rules.

13. Judges of the Supreme Court as well as of the High Court discharge sovereign judicial functions. The position of a Judge of these Courts for grant of medical facilities remains the same even after retirement. However, High Court Judges Rules as pointed out above makes it manifestly clear that for a sitting Judge of the High Court of Delhi as well as of Punjab and Haryana, the medical facilities would be the same as applicable to a Union Deputy Minister. Therefore, providing medical facilities les than the one envisaged under the Rules would be against the legislative intent as well as the status of the Judges of the High Court even after they demit office. Anything which is inconsistent with the spirit of the Constitution or interferes with th independence of judiciary has to be struck down. Independence of judiciary is to be maintained not only when the Judge is in office. If a Judge of superior Court has to look for favors in regard to medical facilities after demitting office, that wold tantamount to interference with the independence of judiciary. Such interference has to be eschewed at all costs.

14. In this regard, we can do no better than to repeat what the Supreme Court has said in All India Judges’ Association & Ors. Vs Union of India & Ors., . In paragraphs 7 to 9 of the Report, the Supreme Court said:

“The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When IT is said that in a democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that the three essential functions of the State are entrusted to the three organs ofhe state and each one of them in turn represents the authority of the State. However, those who exercise the State power are the Ministers, the Legislators and the Judges, and not the members of their staff who implement or assist in implementing their dcisions. The council of ministers or the political executive is different from the secretarial staff or the administrative executive which carries out the decisions of the political executive. Similarly, the Legislators are different from the legislativ staff. So also the Judges from the judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive. In some democracies like the USA, members of some State judiciaies are elected as much as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members o the other services, therefore, cannot be placed on a par with the members of the judiciary, either constitutionally or functionally.8.This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it.o keep the Judges in want of essential accoutrements and thus to impede them in the proper discharge of their duties, is to impair and whittle away justice itself.9.So much for the contention of the review petitioners that the directions given by this Court would lead to the demand from the members of the other services for similar service conditions. It is high time that all concerned appreciated that for the reasons pointed out above there cannot be any link between the service conditions of the Judges and those of the members of the other services. It is true that under Article 309 of the Constitution, the recruitment and conditions of service of the membersf the subordinate judiciary are to be regulated by the Acts of the appropriate legislature and pending such legislation, the President and the Governor or their nominees, as the case may be, are empowered to make rules regulating their recruitment and th conditions of service. It is also true that after the Council of States makes the necessary declaration under Article 312, it is the Parliament which is empowered to create an All India Judicial Service which will include posts not inferior to the postf District Judge as defined under Article 236. However, this does not mean that while determining the service conditions of the members of the judiciary, a distinction should not be made between them and the members of the other services or that the servce conditions of the members of all the services should be the same. As it is, even among the other services, a distinction is drawn in the matter of their service conditions. This Court has in the judgment under review, pointed out that the linkage betwen the service conditions of the judiciary and that of the administrative executive was an historical accident. The erstwhile rulers constituted, only one service, viz., the Indian Civil Service for recruiting candidates for the judicial as well as the aministrative service and it is from among the successful candidates in the examination held for such recruitment, that some were sent to the administrative side while others to the judicial side. Initially, there was also no clear demarcation between thejudicial and executive services and the same officers used to perform judicial and executive functions. Since the then Government had failed to make the distinction between the two services right from the stage of the recruitment, its logical consequencs in terms of the service conditions could not be avoided. With the inauguration of the Constitution and the separation of the State power distributed among the three branches, the continuation of the linkage has become anachronistic and is inconsistentith the constitutional provisions. As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and the political executive. Under the Constitution, the judiciary is above thedministrative executive and any attempt to place it on a par with the administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the judiciary must be comparableto those of the administrative executive and any amelioration in the service conditions of the former must necessarily lead to the comparable improvement in the service conditions of the latter.”
15. Even otherwise in the case in hand, Justice Chawla enjoyed a special position being a Judge of superior court. Therefore even in the absence of CGHS Membership, he would have been entitled to reimbursement of his medical expenses even after retirement. The fact of the matter is that he became life member of CGHS on 8th March, 2002 by paying a lump sum fee, which was accepted by CGHS knowing fully well that Justice Chawla is already admitted in the hospital since 13th December, 2001. Therefore, one the Life Membership Fee was accepted it had to relate back from the date when he was hospitalised i.e. 13th December, 2001. The benefit of the same could not be restricted from 8th March, 2002. The purport and purpose of CGHS Scheme is to grant medica benefit and not to deprive the medical benefit on technical grounds particularly when Justice Chawla enjoyed a special position being a retired Judge of a High Court.

16. In this context it is relevant to mention that Office Memorandum No. D-12011/64/98-CGHS Desk-I/CGHS (P) dated 1st July, 1999 issued by the Government of India on which the learned Central Government Standing Counsel has placed great reliance has beenissued only to all Ministries/Departments of the Government of India (amongst others). It is nobody’s case that a High Court can be equated with any Ministry/Department of the Government of India.

17. Even otherwise, since Justice Chawla became a life member of the CGHS on 8th March, 2002 (which life membership was accepted by the Central Government) the benefits accruing to Justice Chawla under the CGHS, would be presumed to inure to him even after his retirement. However, we need not go that far because the claim made by the Intervenor is limited to the period beginning from the date when Justice Chawla was hospitalised, that is, on 13th December, 2001. In view of this limited prayer made b the Intervenor, the benefit of our decision can be given to the Intervenor only for the period from 13th December, 2001 till 8th March, 2002. For the period thereafter until his death, the Central Government has no objection in reimbursing his medicalxpenses.

18. No other point is urged before us in support of the stand of the Central Government.

19. We, therefore, allow this application with the following directions:-

1. The Central Government shall immediately process and reimburse to the Intervenor all medical expenses incurred on the treatment of late Justice Maharaj Krishan Chawla for the period of his hospitalisation from 13th December, 2001 until his death on4th March, 2002.
2. The reimbursement be made within a period of two months from today and in any case before 31st January, 2004.20.
The application is allowed with the directions given above. No costs.