IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 803/2005 alongwith CWPs No. 804, 889, 890 of 2005, 1299, 1342, 1345, 1346, 1347, 1348, 1349, 1350 of 2006, 455, 456, 500, 643, 647, 651, 652, 654, 674, 683, 1705, 1800, 1801, 1851, 1853 of 2007, 2234/2008, 1319/2009, 1060, 1212 and 1229 of 2010 Decided on:22.2.2011 _____________________________________________ 1. CWP No.803/2005 Ganga Ram. …Petitioner. Versus Union of India and others. …Respondents. 2. CWP No.804/2005 Shiv Ram. …Petitioner. Versus Union of India and others. …Respondents. 3. CWP No.889/2005 Liaq Ram. …Petitioner. Versus Union of India and others. …Respondents. 4. CWP No.890/2005 Jia Lal. …Petitioner. Versus Union of India and others. …Respondents. 5. CWP No.1299/2006 Rameshwar Dass Thakur. …Petitioner. Versus Union of India and others. …Respondents. 6. CWP No.1342/2006 Bahadur Singh. …Petitioner. Versus Union of India and others. …Respondents. 7. CWP No.1345/2006 Maheshwar Parkash. …Petitioner. Versus Union of India and others. …Respondents. 8. CWP No.1346/2006 Neel Chand. …Petitioner. Versus Union of India and others. …Respondents. 9. CWP No.1347/2006 Hira Lal. …Petitioner. Versus Union of India and others. …Respondents. 10. CWP No.1348/2006 Nokhi Ram Thakur. …Petitioner. Versus Union of India and others. …Respondents. 11. CWP No.1349/2006 Phagnu Ram. …Petitioner. 2 Versus Union of India and others. …Respondents. 12. CWP No.1350/2006 Panchi Ram Thakur. …Petitioner. Versus Union of India and others. …Respondents. 13. CWP No.455/2007 Keshav Ram. …Petitioner. Versus Union of India and others. …Respondents. 14. CWP No.456/2007 Bishnu Dutt. …Petitioner. Versus Union of India and others. …Respondents. 15. CWP No.500/2007 Pushpa Devi. …Petitioner. Versus Union of India and others. …Respondents. 16. CWP No.643/2007 Moti Ram. …Petitioner. Versus Union of India and others. …Respondents. 17. CWP No.647/2007 Bala Ram. …Petitioner. Versus Union of India and others. …Respondents. 18. CWP No.651/2007 Chain Lal. …Petitioner. Versus Union of India and others. …Respondents. 19. CWP No.652/2007 Birbal Ram. …Petitioner. Versus Union of India and others. …Respondents. 20. CWP No.654/2007 Man Dass. …Petitioner. Versus Union of India and others. …Respondents. 21. CWP No.674/2007 Jawahar Chand. …Petitioner. Versus Union of India and others. …Respondents. 22. CWP No.683/2007 Jagnu Nath. …Petitioner. Versus Union of India and others. …Respondents. 23. CWP No.1705/2007 Angroo Singh. …Petitioner. Versus Union of India and others. …Respondents. 24. CWP No.1800/2007 Bharat Singh. …Petitioner. Versus Union of India and others. …Respondents. 25. CWP No.1801/2007 Ishwar Singh. …Petitioner. Versus Union of India and others. …Respondents. 3 26. CWP No.1851/2007 Mool Raj. …Petitioner. Versus Union of India and others. …Respondents. 27. CWP No.1853/2007 Jawahar Lal. … Petitioner. Versus Union of India and others. …Respondents. 28. CWP No.2234/2008 Baldev Krishan Harish. …Petitioner. Versus Union of India and others. …Respondents. 29. CWP No.1319/2009 Lal Chand. …Petitioner. Versus Union of India and others. …Respondents. 30. CWP No.1060/2010 Khimi Ram. …Petitioner. Versus Union of India and others. …Respondents. 31. CWP No.1212/2010 Durga Singh. …Petitioner. Versus Union of India and others. …Respondents. 32. CWP No.1229/2010 Dharam Pal. …Petitioner. Versus Union of India and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice R.B. Misra, Judge Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. (in all the petitions): For the petitioner(s) : Mr. Ramesh Sharma, Advocate. For the Respondents: Mr. Sandeep Sharma, Solicitor General of India. _____________________________________________________ Rajiv Sharma, Judge (oral). Since common questions of law and facts are involved in all these petitions, the same are taken up together for 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 4 hearing and are being disposed of by a common judgment. However, in order to maintain clarity, the facts of CWP No. 456/2007 have been taken into consideration. 2. Indo-Tibetan Border Police Force was raised in 1962. According to the statement of objects and reasons of the Indo Tibetan Border Police Force Act, 1992 (hereinafter referred to as ‘the Act’ for brevity sake), the Force has been charged with the responsibility of ensuring the security of northern borders, instilling a sense of security among the people living in the border areas and preventing trans-border crimes, smuggling and unauthorized entry into or exit from Indian territory in co-ordination with other security forces. In addition, the Force has been assigned bank security duties and other sensitive duties in terrorist afflicted States. However, considering the nature and purpose of the Force and experience gained, during the last three decades it has been felt that the Force should be regulated by a separate self-contained statute which will provide for its special needs, especially the needs of efficiency and discipline. The Act came into force on 30.5.1994. The constitution of the force is provided under section 4. The person to be enrolled in the Force, the mode of enrollment and the procedure for enrolment is provided under section 6 of the Act. Every person subject to the Act holds the office during the pleasure of the President. 5 3. Petitioner was enrolled in the Indo Tibetan Border Police on 1.5.1973. He retired on 15.5.2002. The scheme called ‘Indo Tibetan Border Police Medical Assistance Scheme for Pensioners Rules, 1966’ (hereinafter referred to as ‘Rules’ for brevity sake) was launched on 16.10.1996. It came into force with effect from 1.8.1996. The objectives for which the scheme was launched are as under: “While a Government servant is in service he is adequately taken care of by various facilities extended to him. On retirement particularly at the lower levels problems of mal-nutrition distressingly low housing standards, ill health, lack of occupational adaptability and exceptionally inadequate level of savings are the conditions in which he has to survive for the rest of his life. The progressive break up of the joint family system coupled with the growing tendency of present generation to migrate to urban areas and the escalating cost of living makes him emotionally, socially and economically a cripple. As the personnel while in service have given their best years in the service of the nation and the organization we owe a moral duty towards them to do our bit to help them during their days of dire need. With a view to mitigate the expenses likely to be incurred by these personnel for their medical treatment, particularly, as no satisfactory medical cover exist in the far flung rural areas from where majority of our personnel hail from, a scheme entitled ‘ITBP Medical Scheme for Pensioners” is hereby introduced with the hope that this will help to a significant extent in making the retired life of our pensioners a little bit less uncomfortable. In order to constitute and regulate this fund the Indo-Tibetan Border Police Medical Assistance Scheme for Pensioners Rules, 1996 is hereby laid down.” 6 4. Rule 5 provides for eligibility for membership of fund. Rule 6 provides for benefits under the scheme. The principal beneficiary and on his/her demise the secondary beneficiary was eligible to the financial assistance of ` 12,000/- per year from the date of principal beneficiary ceasing to be in Government service for a period of 20 years from such date. Rule 7 prescribes eligibility to become a beneficiary. Rule 8 provides for generation of fund by monthly subscription, by lump sum payment, by loan and by deferred payment. Rule 9 prescribes for disqualification of the members of the scheme. Rule 10 provides for documents for sanction of payment. Rule 12 provides for managements of funds. As per sub-rule (3) of rule 12, the Governing Body is required to meet at least once every financial year to review the state of the fund and to take policy decisions about the running of the fund and any increase in subscription rates and amendment to the Rules require the approval of 75% (21 members) of the Governing Body. Rule 13 lays down the responsibility of the custodian of the fund. Rule 17 provides for interpretation of the scheme. 5. Petitioner has already paid his contribution of ` 36,000/- by way of subscription. He was paid a sum of ` 12,000/- in the years 2002-2003, ` 8,000/- in the year 7 2004, ` 10,000/- in the years 2005 and 2006. When the petitioner was paid only a sum of ` 8,000/- in the year 2004, he was apprised by the Deputy Chief Account Officer vide Annexure P-2 on 31.5.2004 that in view of continuous fall in the interest rates, the Governing Body has taken the following decisions: (i) “All servicemen who served less than ten years from the date implementation of the MASP scheme or till his retirement or till death, they shall be paid Rs. 8,000/- instead of Rs. 12,000/- per annum for a period of ten years. Earlier paid amount shall be exempted. (ii) All those servicemen who served for more than 10 years till implementation of the MASP scheme, or till retirement or till his death shall be paid Rs. 10,000/- per annum for a period of 10 years.” 6. Thereafter the Governing Body’s meeting was called on 15.12.2004 for modifying the MASP Rules at Directorate Campus of I.T.B.P. Accordingly, decision was taken that all the members of the scheme, who have paid the required amount of ` 40,000/- till the date of their retirement, were to get ` 10,000/- for a period of 10 years. Those members whose benefit was stopped after ` 80,000/- were to get ` 10,000/- for next two years. The total amount of the benefit was to the extent of ` one lakh in 10 years. 7. Mr. Ramesh Sharma has strenuously argued that the action of respondents of altering the terms and conditions 8 of MASP scheme on the basis of letter dated 31.5.2004 and 15.12.2004 is illegal, arbitrary, unjustifiable and thus, violative of Articles 14 and 16 of the Constitution of India. According to him, once the rights of the members of the scheme have crystallized, there could not be any amendment whereby the benefit could be restricted from ` 12,000/- to ` 10,000/- per annum, that too for a period of 10 years. According to Mr. Ramesh Sharma the scheme could not be closed abruptly without informing the petitioners and similarly situate persons. 8. Mr. Sandeep Sharma, learned Assistant Solicitor General of India has vehemently argued that MASP scheme has been closed with effect from 1.11.2007. He also argued that the benefits were to be paid to the members of the MASP Scheme by taking the same from the corpus. He then argued that initially, at the time when scheme was launched in the year 1996, rate of interest was 13% per annum. However, the same was reduced in the year 2005-2006 to 5.5% to 6%. He also contended that the Union of India has no role to play in the matter and it was purely a private corpus on the basis of MASP scheme in which only the private contributions have been made and the Central Government has not paid any amount. 9 9. We have heard the learned counsel for the parties and have perused the pleadings carefully. 10. It is evident from the objectives of the scheme that it has been launched to mitigate the hardship being faced by the personnel of the I.T.B.P. Scheme has come into force with effect from 1.8.1996. According to the Scheme, i.e. Annexure P-1, the principal beneficiary has to be paid a sum of Rs. 12,000/- per year from the date of principal beneficiary ceases to be Government servant for a period of 20 years from such date. The members of the scheme were required, as per rule 8, to contribute a sum of Rs. 90/- per month during the period of Government service till such time that his total contribution to the fund reaches the stipulated amount of Rs. 36,000/-. There was also option to make lump sum payment. Initially corpus was Rs. 2 crores. 11. It will be apt at this stage to take note of rule 12 of the Rules. A bare perusal of rule 12 makes it abundantly clear that the funds were to be managed by the Governing Body, which comprised of Director General, I.T.B.P. as President, Inspector General (Headquarters) as Vice- President, a senior and suitable officer posted at the Headquarters nominated by the President of the Fund, as Custodian, two D.Is.G. from Directorate General, one person in each rank from Constable to Commandant, one 10 representative each of personnel who were on deputation with I.T.B.P. of Civil Ministerial staff and ten retired personnel nominated for this purpose for a period of two years by the Governing Body. The total number of members of the Governing Body was 28. It is, thus, abundantly clear that serving/retired personnel of the I.T.B.P. were the members of the Governing Body. Thus, the submission of Mr. Sandeep Sharma that the Central Government has no role to play in the management of the funds merits rejection. 12. The Central Government has launched this scheme to mitigate the hardship of I.T.B.P. personnel, who hails from remote areas. In the instant case, the petitioner was paid a sum of ` 12,000/- for 2002-2003. It is only in the year 2004 that the amount was reduced to ` 8,000/-. Thereafter on the basis of the meeting of the Governing Body held on 15.12.2004, the amount was reduced from ` 12,000/- to ` 10,000/-. The decision to decrease the amount from ` 12,000/- to ` 10,000 could only be taken prospectively and not retrospectively. The rights of the petitioners have crystallized on the date when they have already deposited the requisite subscription and started getting a sum of ` 12,000/-. The respondents are restrained from altering the terms and conditions of the scheme mid-way, which came into force on 1.8.1996. Respondents have not only amended the scheme 11 mid-way, but have altogether scrapped the same, as noticed above on 1.11.2007. This was not permissible under law. 13. Mr. Sandeep Sharma has also argued that the decision was taken by the Governing Body to reduce the amount from ` 12,000/- to ` 10,000/- since the rate of interest reduced drastically from 13% to 5.5%-6%. He has failed to point out from the original scheme, i.e. Annexure P- 1, that the payment of amount to beneficiaries was dependant on the rate of interest. The power of Governing Body, as per sub-rule (3) of rule 12, was only with regard to increase in subscription rates and amendment to the Rules, which required approval of 75% members of the Governing Body. There is no material placed on record by the respondents why the scheme has been abruptly closed. It may be true that the scheme is not per se statutory but on the basis of scheme, petitioners, who were serving in the I.T.B.P., were legitimately expecting that after their retirement, their health problems will be taken care from the funds to be released to them @ ` 12,000/- per year. The action of the respondents to amend the original scheme and thereafter to scrape the same, without making alternative arrangements, is harsh and unreasonable. The scheme was launched to mitigate the hardship faced by the I.T.B.P. personnel by assuring them that an amount of ` 12,000/- will 12 be paid to them or their family members for medical expenses. Petitioners were expecting that they will get ` 12,000/- per annum. It was expected from the respondents either to frame alternative scheme or till the new scheme was framed to continue with the existing scheme. 14. The Court can also take judicial notice of the fact that the Indo-Tibetan Border Police personnel are posted alongwith Indo-China Border. The Border area is mountainous and the personnel are required to serve even beyond the height of ten thousand feet. There is scarcity of oxygen at the height of beyond ten thousand feet and it affects the health of the persons who have to serve in these harsh conditions. Areas where the petitioners are posted get regular snow fall and they serve in a very hazardous and harsh conditions. The persons to be posted at these heights are supposed to be physically fit and mentally alert. It is the duty of the Central Government to ensure that they are kept in absolute good health before and after their retirement. 15. Mr. Sandeep Sharma has lastly contended that continuation of old rates would amount to denial of benefits to the new members of the scheme as the entire benefit would finish before their retirement. Similar contention has been repelled by their Lordships of the Hon’ble Supreme Court in Air India Employees Self-Contributory 13 Superannuation Pension Scheme versus Kuriakose V. Cherian and others, (2005) 8 SCC 404. In this case while dealing with self-contributory scheme, the following questions had fallen for consideration before their Lordships: “14. In support of these appeals, three contentions have been urged: (1) depletion of the fund amount if not checked would result in the retirees after the year 2005 not getting any pension. Therefore, there was the requirement to make the impugned amendments; (2) the trustees in terms of Deed and the Rules have unrestricted power to amend the Scheme so as to apply amendment to also those who stand retired; and (3) the Scheme is not amenable to the writ jurisdiction. The appellants are neither an instrumentality or agency of the State nor other authority contemplated by Article 12 of the Constitution.” 16. Their Lordships of the Hon’ble Supreme Court have not interfered with the findings of the High Court that the writ petition was maintainable. The contention that the depletion of the fund amount if not checked would result in the retirees after the year 2005 not getting any pension was also repelled. The plea that the trustees in terms of the deed and the Rules have unrestricted power to amend the Scheme so as to apply amendment to also those who stand retired was also rejected. Their Lordships have held that the rights of the retirees had crystallized and no change could be made in annuity by amendment. 14 17. In the instant case also, we hold that the present petition is maintainable against the respondents on the basis of constitution of Governing Body as the petitioners and similarly situate persons had been serving in the I.T.B.P. The Scheme has been signed by the Director General of Police, as per Annexure P-1. The amendments have also been signed by the Director General of Police, I.T.B.P. The rights which have accrued to the petitioners and similarly situate persons could not be taken away by carrying out amendments. The scheme could neither be amended nor scrapped only on the ground that the funds would not be available due to reduction of rate of interest. Petitioners have acquired right to get the amount as per the original scheme and the scheme could not be closed without hearing the petitioners. Petitioners have suffered civil and evil consequences. 18. Their Lordships of the Hon’ble Supreme Court in United India Insurance Company Limited versus Manubhai Dharmasinhbhai Gajera and others and other connected matters, (2008) 10 SCC 404 have held that improvement of public health has been held to mean an obligation on the part of the State to put forth its policy to ecological balance and hygienic environment, the latter being an indirect facet of the right to healthy life. Their Lordships 15 have further held that if it is ‘State’ its action must be fair and reasonable. Their Lordships have held as under: “26. If it is a 'State' its action must be fair and reasonable. It has been so held in a catena of decisions of the Court as for example Peacock Plywood Plywood (P) Ltd. v. Oriental Insurance Co. Ltd. [JT 2007 (1) SC 191 ; 2006 (12) SCC 673] and Life Insurance Corporation of India v. Consumer Education and Research Centre [JT 1995 (4) SC 366 ; 1995 (5) SCC 482]. 27. There cannot be any doubt that Directive Principles of State policy by themselves per se are not enforceable in a court of law. [See Kesavananda Bharati v. State of Kerala [1974 (3) SCC 225]. 28. We would assume that it is one thing to say that the State is to make all endeavours to improve the public health but the same by itself would not mean that a contract of insurance governed by statute must receive construction in terms of the said provision or otherwise, the endeavour of the State should have been to direct compulsory insurance for all its citizens. Improvement of public health has been held to mean an obligation on the part of the State to put forth its policy to ecological balance and hygienic environment, the later being an indirect facet of the right to healthy life. {Virinder Gaur and others v. State of Haryana and others [1995 (2) SCC 577]}. {[See also Kirloskar Brothers Ltds. v. Employees' Stte Insurance Corporation [JT 1996 (2) SC 159 ; 1996 (2) SCC 682]}. 29. Even otherwise the term "health" may be given a wider meaning in the context of insurance. It may mean sound health. Collins English Dictionary defines "health" as :- "Health: the state of being bodily and mentally vigorous and free from disease, the general condition of body and mind: in poor health, the condition of any unit, society, etc.: the economic 16 health of a nation, a toast to a person, wishing him or her good health, happiness, etc., (modifier) of or relating to food or other goods reputed to be beneficial to the health: health food; a health store., (modifier) of or relating to health, esp. to the administration of health: a health committee; health resort; health service., an exclamation wishing someone good health as part of a toast (in the phrases your health, good health, etc.)." 19. In view of the observations and discussions made hereinabove, the petition is disposed of with the following directions: i) The amendment carried out by the Governing Body in its meeting held on 15.12.2004 is quashed and set aside. The decision of the respondents to close the scheme with effect from 1.11.2007 is also declared illegal. ii) Respondents are directed to revive the original scheme, which came into force with effect from 1.8.1996 and the respondents are further directed to consider providing grant-in-aid towards the corpus till new scheme is framed to mitigate the hardship of the personnel already serving and retired from the I.T.B.P. iii) Respondents shall pay to the petitioners and similarly situate persons after the Central Government considers increasing the corpus by providing grant-in-aid to release ` 12,000/- per annum, as per the original scheme, which came into force with effect from 1.8.1996. 20. There shall, however, be no order as to costs. (R.B. Misra), Judge. (Rajiv Sharma), Judge. 22.2.2011 *awasthi*