The extension of CS(MA) Rules to pensioners requires a formal order; mere recommendations do not establish entitlement.

K.A. Abdul Gafoor, J.

1. This batch of writ petitioners are filed by the Union of India assailing a common judgment of the Central Administrative Tribunal, Ernakulam bench. The point mooted for debate is whether the Central Government Pensioners are entitled to the payment in terms of CS(MA) Rules, 1944 for the treatment they had undergone. Admittedly, the said Rules are applicable only for those in service. Fifth Pay Commission recommended to Central Government that the CS(MA) Rules, 1944 shall be extended to the Central Government Pensioners as well. The recommendation of the Fifth Pay Commission with regard to the revision of pay and other conditions of service had been implemented by issuing necessary orders. But the extension of CS(MA) Rules to the Pensioners was under correspondence. The Ministry of Department of Pension and Pensioners' Welfare in O. M. No.45/7497 PP and PW dated 15/04/1997 addressed the Department of Health Services with regard to the modalities for extension of the CS(MA) Rules and for evolving a scheme therefore. In reply, Annexure - A3 was issued conveying their 'No Objection' in implementing the scheme, but with the reservation that they would undertake administration of CGHS scheme and the areas where CGHS scheme was not applicable, the benefits in terms of CS(MA) Rules shall have to be worked out and paid by the concerned departments or Ministries, as the case may be. Taking Annexure - A3 in Ext. P1 as extension of the benefit in terms of CS(MA) Rules, 1944, several claims were lodged by the pensioners and few departments were granting reliefs while few other departments were not. This gave rise to enormous litigation before the Central Administrative Tribunal. This led to issuance of Annexure - A4 order in Ext. P1 whereby it was clarified as follows:-

"It is therefore, considered necessary to clarify unequivocally that the O. M. dated 05/06/1998 was not intended to be a final order extending the applicability of CS(MA) Rules, 1944 to pensioners. In fact, it is not possible for any individual department to take such policy decisions without obtaining views of various departments and particularly, the Department of Expenditure. Such being the case, in the process of examining the recommendation of the 5th Pay Commission on this issue, the Department of Expenditure has categorically said that in view of huge financial implications, it is not feasible to extend CS(MA) Rules, 1944 to pensioners."

2. Therefore, the payment was stopped. In the meantime, there arose a question whether the payment could be made until the date of Annexure - A4 i.e. 20/08/04. Finally, a Division Bench of this Court in judgment in Writ Petition No. 1977/2005 found that the benefit which has been granted taking Annexure - A3 as extension of the CS(MA) Rules, 1944 could not have been denied in respect of the expenditure incurred until the date of Annexure - A4 i.e. 20/08/2004. But the Division Bench made it clear that they did not pronounce upon the legality or otherwise of Annexure - A4. It was in the above circumstances, Annexure - A4 was independently challenged before the Tribunal in a batch of original applications. The tribunal below relying on the decision reported in State of Punjab v. Mohinder Singh Chawla (AIR 1997 SC 1226) held that it is settled law that right to health is an integral part of right to life and therefore, Government has constitutional obligation to provide the health facilities and the contention of the Union about heavy burden in implementing such scheme could not have been heard. Therefore, the Tribunal quashed Annexure - A4. The Tribunal also directed payment in terms of CS(MA) Rules. This is impugned by the Union of India, the Counsel for the Union of India submi