O R D E R

Applicant is a former Assistant Commissioner (Central Excise and Customs) retired on superannuation on 31.08.2013. He is aggrieved by non-granting of Fixed Medical Allowance, FMA for short, at the eligible rates fixed by the Government from time to time. At the time of retirement since some disciplinary cases were pending, initially he was granted provisional pension. Later, under Annexure-A1, pension was granted to him on 05.09.2022 based on the 7^th Pay Commission recommendations. Subsequently, the Revised Special Seal Authority was issued. In Annexure-A2 his medical allowance payable is shown as 'nil'. Highlighting the grievance that he was not granted fixed medical allowance from 01.09.2013, from the next date of retirement, he approached the 3^rd respondent seeking to pay him such allowance, which has been replied through Annexure-A4. According to the applicant, Annexure-A4 communication is absolutely illegal, arbitrary and is liable to be set aside. Absence of entries in the PPO on matters regarding medical facility or fixed medical allowance is a lapse on the part of the 3^rd respondent, that he was under the bonafide impression that he would be paid fixed medical allowance as he was not availing CGHS facility. Thus he seeks a declaration for quashing Annexure-A4 that he is entitled for fixed medical allowance from 01.09.2013 and to direct the respondents to grant him the allowance with interest at the rate of 12% per annum for arrears.

2. On behalf of the 2^nd respondent, the Assistant Commissioner (Legal) filed a reply disputing the contentions. Referring to Annexures-R1 and R2 it is submitted that the applicant is not entitled to get Fixed Medical Allowance as he had exercised option to avail benefit of CGHS. At the time of retirement he was residing in Mumbai. Since he was residing in CGHS covered area and had exercised option to avail CGHS facilities he is not entitled for fixed medical allowance. According to the respondents, after opting for CGHS medical facilities, now he is claiming for fixed medical allowance, which cannot be allowed.

3. The applicant filed a rejoinder. He has conceded the proposition that the pensioner is eligible for either Fixed Medical Allowance or CGHS facilities, but both cannot be denied. At the time of giving Annexure-R2 he was residing in Mumbai, later he shifted to Kochi. As there was disciplinary proceedings pending, initially he was granted only provisional pension; DCRG etc. were not paid at that time. It was on the orders of this Tribunal in O.A.276/2022 that the 2^nd respondent had sent all the necessary forms in 2022, that the respondents did not take into account the forms filled up earlier during 2013 before his superannuation. According to the applicant, on retirement he started residing in Kochi where there was no CGHS facility. He has not availed any CGHS facility after retirement and shifting the residence to Kochi; CGHS facility was started at Kochi subsequently. Thus he has opted for Fixed Medical Allowance. Till he opts for CGHS facilities, he should be paid Fixed Medical Allowance.

4. On behalf of the respondents 1 to 4 an additional reply is filed stating that fixed medical allowance is admissible to pensioners residing in areas not covered under CGHS scheme subject to furnishing option and undertaking of prescribed format. However, they can opt for CGHS facility from the nearest wellness centre of their residence. Pensioner can change the option once in a life time in case of areas covered under CGHS to the areas not covered under CGHS and vice versa in terms of Annexure-R3 OM dated 23.3.2022. In both Annexures-R1 and R2 he opted to avail CGHS facility and hence not entitled to get fixed medical allowance. Referring to Annexure-R4 it is said that the wellness centre was started in Kochi on 29.11.2019. The petitioner has opted for CGHS facility but he can change option once in a life time in case of shifting from the area covered under CGHS to the area not cover