2006 Supreme(SC) 755

2006(8) Supreme 390
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution)
Y.K. Sabharwal, CJI., K.G. Balakrishnan, S.H. Kapadia, C.K. Thakker and P.K. Balasubramanyan, JJ.
Confederation of Ex-Servicemen Associations & Ors.—Petitioners
versus
Union of India & Ors.—Respondents
Writ Petition (Civil) No. 210 of 1999
Decided on 22-8-2006
Counsel for the Parties :
For the Petitioners : K.S. Bhati, Ms. Aishwarya Bhati and Jagdev Singh Manhas, Advocates.
For the Respondents : R.P. Mehrotra, Ms. Anil Katiyar and Garvesh Kabra (for Arvind Kumar Sharma (N.P.), Advocates.

IMPORTANT POINTS
1. Classification between in-service employees and retires is legal, valid and reasonable classification and if certain benefits are provided to in service employees and those benefits have not been extended to retired employees, it cannot be held that there is discrimination which is hit by Article 14 of the Constitution.
2. A classification between defence personnel and other than defence personnel is also reasonable and valid classification.
3. Though the right to medical aid is a fundamental right of all citizens including ex-servicemen guaranteed by Article 21 of the Constitution, framing of scheme for ex-servicemen and asking them to pay ‘one time contribution’ neither violates Part III nor it is inconsistent with Part IV of the Constitution.

Headnote:(i) SERVICE LAW—Constitution of India—Article 32—Ex-defence personnel—Claim of full and free medicare of ex-servicemen, their families and dependents treating such right as one of the fundamental rights—Recently it has been decided by the Central Government and a scheme framed providing medical services to ex-servicemen on basis of ‘on time contribution’—Contributory Scheme of 2002 substantially covers extensive medical facilities to be provided to ex-servicemen—Amount of contribution ranges from Rs. 1,800/- to Rs. 18,000/—Whether the State can ask the retired defence personnel to pay an amount of contribution for getting medical facilities by becoming a member of such scheme—Held, Yes—Whether such action would violate fundamental rights guaranteed by Part III of the Constitution—(No)—However, Government has no difficulty in waiving/paying contribution as a ‘one time measure’ on behalf of ex-defence personnel who retired prior to 1-1-1996 and wish to avail benefit of the scheme.

       Held : In our opinion, such a contributory scheme cannot be held illegal, unlawful or unconstitutional. Ultimately, the State has to cater to the needs of its employees – past and present. It has also to undertake several other activities as a welfare State. In the light of financial constraints and limited means available, if a policy decision is taken to extend medical facilities to ex-defence personnel by allowing them to become members of contributory scheme and by requiring them to make one time payment which is a reasonable amount, it cannot be said that such action would violate fundamental rights guaranteed by Part III of the Constitution.(Para 62)

       No State has unlimited resources to spend on any of its projects. Provisions relating to supply of medical facilities to its citizens is not an exception to the said rule. Therefore, such facilities must necessarily be made limited to the extent finances permit. No right can be absolute in a welfare State. An individual right has to be subservient to the right of public at large.(Para 63)

       In our considered opinion, though the right to medical aid is a fundamental right of all citizens including ex-servicemen guaranteed by Article 21 of the Constitution, framing of scheme for ex-servicemen and asking them to pay one time contribution neither violates Part III nor it is inconsistent with Part IV of the Constitution. Ex-servicemen who are getting pension have been asked to become members of ECHS by making one time contribution of reasonable amount (ranging from Rs.1,800/- to Rs.18,000/-). To us, this cannot be held illegal, unlawful, arbitrary or otherwise unreasonable.(Para 64)

       To us, the policy decision in formulating Contributory Scheme for ex-servicemen is in accordance with the provisions of the Constitution and also in consonance with the law laid down by this Court. We see no infirmity therein. We, therefore, hold that getting free and full medical facilities is not a part of fundamental right of ex-servicemen.(Para 65)

       We must, however, hasten to add that we are not unmindful or oblivious of exemplary and extremely useful services rendered by defence personnel. We are equally conscious of the fact that the safety, security and comfort enjoyed by the countrymen depend largely on dedication and commitment of our soldiers, sailors and airmen. We are also aware that they are exposed to harsh terrain and discharge their duties in hostile conditions of life. For days and months, they are at places covered by snow or in desert or in wild forests. They are unable to come in contract with their family members, kiths and kins or rest of the world. They are not in a position to enjoy even usual and day-to-day comforts and amenities of life available to ordinary men and women. At times, they are not able to communicate to their friends and relatives. It is also not in dispute that the question relates to a particular class of persons which is a diminished category, retired prior to January 1, 1996.(Para 66)

       We suggested that the Government may waive payment of contribution charges or may consider to pay requisite one time contribution on behalf of the employees who may be interested in availing the benefits of ECHS. We also indicated that in case of any difficulty in granting this one time concession, the Government may file an affidavit within a period of four weeks placing on record the approximate amount which may have to be waived or contributed by the Government on behalf of such category of ex-servicemen. No such affidavit has been filed by the Government so far. It can, therefore, safely be presumed that the Government has no difficulty in waiving/paying contribution as a one time measure on behalf of ex-defence personnel who retired prior to January 1, 1996 and wish to avail benefits of ECHS. Obviously, the said question will not arise in future. We, therefore, dispose of the matter in the light of our earlier order and the observations made therein.(Para 68)

       Keeping in view totality of facts and circumstances, in our considered view, the ends of justice would be met if we hold the Ex-servicemen Contributory Health Scheme, 2002 (ECHS) to be legal, valid, intra vires and constitutional but direct the respondent-Government either to waive the amount of contribution or to pay such amount on behalf those ex-servicemen who retired prior to January 1, 1996 and who intend to avail medical facilities and benefits under the said scheme by exercising option by becoming members of ECHS. In other words, it is open to ex-defence personnel, who retired prior to January 1, 1996 to become members of ECHS and to claim medical facilities and benefits under the said scheme without payment of contribution amount. They are, however, not entitled to claim medical allowance in future.(Para 69)

       (ii) SERVICE LAW—Constitution of India—Article 14—Classification between in-service employees and retires—Classification between defence personnel and other than defence personnel—Validity—Claim of right of full and free medicare of ex-servicemen, their families and dependents—According to the petitioner, such facilities are provided to Government employees and also to ex-servicemen—Refusal to extend similar medical benefits to ex-defence personnel challenged as arbitrary, discriminatory, unreasonable and violative of Articles 14, 16, 19 and 21 of the Constitution—Whether impugned action in not providing full and free medical facilities to retired defence personnel infringes Article 14 of the Constitution—(No).

       Held : It is no doubt true, that Article 14 guarantees equality before the law and confers equal protection of laws. It clearly prohibits the State from denying persons or class of persons equal treatment provided they are equals and are similarly situated. In our opinion, however, the basis on which the argument proceeds is fallacious and ill-founded. It is well established that Article 14 seeks to prevent or prohibit a person or class of persons from being singled out from others situated similarly. It thus prohibits discrimination or class legislation. It, however, does not prohibit classification if otherwise it is legal, valid and reasonable.(Para 25)

       Every classification to be legal, valid and permissible, must fulfill the twin-test, namely;

       (i)the classification must be founded on an intelligible differentia which must distinguish persons or things that are grouped together from others leaving out or left out; and

       (ii)such a differentia must have rational nexus to the object sought to be achieved by the statute or legislation in question.(Para 29)

       In our considered opinion, classification between in-service employees and retirees is legal, valid and reasonable classification and if certain benefits are provided to in-service employees and those benefits have not been extended to retired employees, it cannot be successfully contended that there is discrimination which is hit by Article 14 of the Constitution. To us, two categories of employees are different. They form different classes and cannot be said to be similarly situated. There is, therefore, no violation of Article 14 if they are treated differently.(Para 30)

       Likewise, a classification between defence personnel and other than defence personnel is also reasonable and valid classification. Moreover, it is clarified by the respondents in the counter-affidavit that for medical facilities provided to retired civil servants, there is also a scheme known as the Central Government Health Scheme (CGHS), which is again contributory. Retired Central Government Servants who are members of the scheme are covered by the said scheme and they are provided medical services on payment of specified amount under the scheme. We, therefore, see no substance in the argument of the petitioners that the impugned action in not providing full and free medical facilities to retired defence personnel infringes Article 14 of the Constitution.(Para 31)

       (iii) ADMINISTRATIVE LAW—Doctrine of ‘legitimate expectation’—Applicability—Medical services to be provided to ex-servicemen—Claim of full and free medicare as being provided to those in service—Whether doctrine of legitimate expectation can be held applicable in such a case—(No)—Service Law.

       Held : The doctrine of legitimate expectation is a latest recruit to a long list of concepts fashioned by Courts for review of administrative actions. No doubt, the doctrine has an important place in the development of Administrative Law and particularly law relating to judicial review. Under the said doctrine, a person may have reasonable or legitimate expectation of being treated in a certain way by an administrative authority even though he has no right in law to receive the benefit. In such situation, if a decision is taken by an administrative authority adversely affecting his interests, he may have justifiable grievance in the light of the fact of continuous receipt of the benefit, legitimate expectation to receive the benefit or privilege which he has enjoyed all throughout. Such expectation may arise either from the express promise or from consistent practice which the applicant may reasonably expect to continue.(Para 32)

       In such cases, therefore, the Court may not insist an administrative authority to act judicially but may still insist it to act fairly. The doctrine is based on the principle that good administration demands observance of reasonableness and where it has adopted a particular practice for a long time even in absence of a provision of law, it should adhere to such practice without depriving its citizens of the benefit enjoyed or privilege exercised.(Para 34)

       We do not wish to burden our judgment with several English, American and domestic decisions, since the proposition of law has not been disputed by the other side. In our opinion, however, in the instant case, the doctrine of legitimate expectation has no application. It is not even the case of the petitioners that certain medical facilities which were enjoyed by them in the past have been withdrawn or revoked. On the contrary, they have admitted that after independence, because of several representations made by them and various efforts, suggestions and recommendations by different Committees and Commissions, more and more medical facilities were provided but they were not enough. It was also their case that in the last few years, situation regarding infrastructure and staff has been improved. They have, therefore, prayed that medical facilities which were not provided in past may also be provided now to retired defence personnel. Similarly, medical facilities should also be extended for serious and terminal diseases. The doctrine of legitimate expectation, in the fact situation, therefore, cannot be invoked by the petitioner in the case on hand.(Para 35)