IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 29-09-2008 CORAM THE HONOURABLE MR. JUSTICE P.K. MISRA AND THE HONOURABLE MR. JUSTICE K. CHANDRU WRIT PETITION Nos.32770 OF 2004, 663 of 2003, 5575, 5755, 28587, 34081, 34143, 34510, 37025 of 2004, 1713, 10677, 18921, 39282 of 2005, 9719 of 2007 and 8822 of 2002 and WPMP.NOs.34710, 41190, 41274, 41635 of 2004 1901, 11597, 20479, 33364, 42106 of 2005 and 1 of 2007 W.P.No.32770 of 2004 Union of India rep. by The Deputy General Manager, (South West) Chennai Telephones, Department of Telecommunication, Chennai 600 010. .. Petitioner 2nd Respondent in W.P.8822/02 UNION OF INDIA REP BY THE DIRECTOR GENERAL OF HEALTH SERVICES, NIRMAN BHAVAN, NEW DELHI ... PETITIONER IN W.P. 663/03 1. UNION OF INDIA REP BY ITS SECRETARY TO GOVT., M/O.HEALTH & FAMILY WELFARE , D/O. HEALTH NIRMAAN BHAVAN NEW DELHI.1. 2 THE ADDITIONAL DIRECTOR, CGHS, E2C, RAJAJI BHAVAN, BESANT NAGAR, CHENNAI.90. https://hcservices.ecourts.gov.in/hcservices/ 3 THE CHIEF POST MASTER GENERAL, TAMILNADU CIRCLE, ANNA SALAI, CHENNAI.2. 4 THE SECRETARY TO GOVT., M/O.PERSON NEL, PUBLIC GRIEVANCES AND PENSION D/O. PENSION & PENSIONER`S WELFARE, NEW DELHI.3. ... PETITIONER IN W.P. 5575/04 UNION OF INDIA, REP BY ITS THE ADDITIONAL DIRECTOR, CGHS, E2C RAJAJI BHAVAN BESANT NAGAR, CHENNAI-90 ... PETITIONER IN W.P. 5755/04 UNION OF INDIA, REP. BY THE CHIEF GENERAL MANAGER CHENNAI TELEPHONES, KELLYS CHENNAI 7 ... PETITIONER IN W.P.28587/04 UNION OF INDIA REP BY ITS THE SECRETARY TO GOVERNMENT OF INDIA DEPT. OF TELECOMMUNICATION SANCHAR BHAVAN, NEW DELHI ... PETITIONER IN W.P.34081, 34143, 34510/04, 39282/05 1. UNION OF INDIA REP BY DIRECTOR GENERAL DEPARTMEN OF POSTS DAK BHAWAN, NEW DELHI-1 2 THE CHIEF POSTMASTER GENERAL TAMILNADU CIRCLE CHENNAI-2 3 THE POSTMASTER GENERAL CENTRAL REGION TIRUCHIRAPALLI620 001 ... PETITIONERS IN W.P.37025/04 UNION OF INDIA REP.BY SUPERINTENDENT OF POST OFFICES, NAGAPATTINAM DIVISION, NAGAPATTINAM ... PETITIONER IN W.P.1713/05 https://hcservices.ecourts.gov.in/hcservices/ UNION OF INDIA REP. BY THE COMPTROLLER AND AUDITOR GENERAL OF INDIA, 10.BAHADURSHA ZAFAR MARG, NEW DELHI- 110 002 ... PETITIONER IN W.P.10677/05 UNION OF INDIA REP.BY THE PRINCIPAL GENERAL MANAGER, DEPT. OF TELECOMMUNICATIONS, OFFICE OF THE GENERAL MANAGER TELECOM. COIMBATORE-045 ... PETITIONER IN .WP.18921/05 THE UNION OF INDIA REP. BY ITS SUPERINTENDNET OF POST OFFICES, NILGIRIS DIVISION UDHAGMANDALAM 643 001 ... PETITIONE IN W.P. 9719/07 R. RANGARAJAN ... PETITIONE RIN W.P.8822/02 Vs. R. Rangarajan ... ISt Respondent in W.P.32770/04 A. VIJAYA NARAYANAN ... IST RESPONDENT IN W.P.663/03 T. SANKARAKRISHNAN ... 2ND RESPONDENT IN W.P.5575/04 P.T. RANGAMANI ...2ND RESPONDENT IN W.P.5755/04 P.T. GOPALAKRISHNAN ... ISt Respondent in W.P.28587/04 A. KRISHNAN ... ISt Respondent in W.P.34081/04 P.B. SUBRAMANIAN ... ISt Respondent in W.P.34143/04 E.K. SUBRAMANIAN ... ISt Respondent in W.P.34510/04 R. SUNDARAJAN ... ISt Respondent in W.P.37025/04 N. SAMBANDAM ... ISt Respondent in W.P.1713/05 A.G. NARAHANASAMY ... ISt Respondent in W.P.10677/05 V. BALASUNDARAM ... ISt Respondent in W.P.18921/05 T. KALIAPPAN ... ISt Respondent in W.P.39282/05 P.R. LAKSHMANAN ... ISt Respondent in W.P.9719/07 The Registrar, Central Administrative Tribunal, Madras Bench, High Court Buildings, Chennai 600 104. .. Ist Respondent in W.P.8822/02, 5575/04, 5755/04, 2nd Respondent in W.P.32770, 663/03, 28587/04, 34081/04, 34143/04, 34510/04, 37025/04, https://hcservices.ecourts.gov.in/hcservices/ 1713/05, 10677/0-5, 18921/05, 3928/05, 9719/07 PRAYER IN W.P. 32770/04, 663/030 of 2003, 5575, 5755, 28587, 34081, 34143, 34510, 37025 of 2004, 1713, 10677, 18921, 39282 of 2005, 9719 of 2007 Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari calling for the records of the first respondent central Administrative Tribunal made in O.A.NO.194/01 dated 23.11.2001, O.A.NO.619/02 dated 8.11.2002, O.A.NO. 489/03 dated 22.10.2003, O.A.NO.731/03 dated 7.1.2004, O.A.NO.1162/03 dated 17.6.2004 O.A.NO.491/03 dated 7.6.2004, O.A.NO.492/04 dated 7.6.2004, O.A.NO.1169/03 dated 7.6.2004, O.A.NO.256/04 dated 13.7.2004 O.A.NO.669/04 dated 5.11.2004, O.A.NO.517/04 dated 14.12.2004, O.A.NO.577/04 dated 22.2.2005, O.A.NO.838/04 dated 27.4.2005 and corrigendum dated 17.6.2005 O.A.NO.761/06 dated 11.1.2007 and quash the same. w.P.8822/02 :_ Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorarified mandamus calling for the records of the first respondent in O.A.NO.194/01 including the order dated 23.11.2007 and to quash that part of the order disallowing interest payable on the delayed re- imbursement and direct the second respondent to pay interest at 18% from the date of the claim to the date of reimbursement so ordered by the Honourable Central Administrative tribunal Madras Bench. For Petitioners in WP.Nos.32770,28587,: Mr.S. Udayakumar, ACGSC 34081,34143, 34510, 18921& 39282,/2005 For Petitioner in WP.No.663/2003 : Mr.S. Krishnaswamy, SCGSC For Petitioners in WP.9719/07,5575/04: Mr.S.M. Deenadayalan, ACGSC For Petitioner : Mr. Yashod Varadhan in WP.8822/2002 & R1 Senior Counsel for in WP.Nos.663/03 & Mr.V.C. Vijayaraghavan 34081/04 For Petitioner in WP.No.37025/2004 : M/s. Thenkodinelson For Petitioner in : Mr.M. Devadoss WP.No.1713/2005 https://hcservices.ecourts.gov.in/hcservices/ For Petitioner in WP.No.10677/2005 : Mr.V. Vijay Shankar For Petitioner in WP.No.5755/2004 : Mr.A.P. Balasubramaniam,CGSC For Respondent-1 in WP.No.28587,34081, 34143/2004, 10677, : Mr.V.C. Vijayaraghavan & 39282 of 2005 For Respondent-1 in WP.No.34510/2004 : Mr.E.K. Subramanian For Respondent-1 in WP.No.37025/2004 : Mr.S. Ramaswamy Rajarajan For Respondent-1 : Mr.P. Wilson in WP.No.1713/2005 Asst. Solicitor General For Respondent-1 in WP.No.18921/2005 : Mr.V. Balasundaram For Respondent-2 in WP.No.8822/2002 : Mr.V. Vaithyalingam SCCG COMMON JUDGMENT P.K. MISRA, J In all these writ petitions, the question regarding availability of medical facilities to the retired employees of the Central Government, either under the Central Services (Medical Attendance) Rules, 1944 (hereinafter referred to as "the CS (MA) Rules) or the Central Government Health Scheme (hereinafter referred to as "the CGHS) and issuance of Central Government Health Scheme Card for availing such facilities, is the core issue. The various Original Applications were filed by different retired employees of the Central Government claiming reimbursement of medical expenses / benefit of medical facilities. For convenience, the Central Administrative Tribunal, which decided various applications in favour of the retired employees, is referred to hereinafter as “the Tribunal” and the retired employees, who were applicants before the Tribunal, are referred to as "the applicant". 2. The basic facts and the basic questions involved in all these writ petitions are similar. The main orders of the Tribunal, https://hcservices.ecourts.gov.in/hcservices/ on the basis of which subsequent orders have been passed are essentially contained in O.A.No.194 of 2001 and O.A.No.619 of 2002, which had been filed by the retired employees of the Central Government claiming medical reimbursement either on the basis of CS (MA) Rules, 1944 or the CGHS. 3. The applicant in O.A.No.194 of 2001 had retired from the Department of Telecommunication (formerly a part of Postal and Telegraph Department). During his service, he was getting the benefit of medical reimbursement as contemplated in CS (MA) Rules. Since he was posted at places which were not covered under CGHS during his service, he was not a member of the CGHS and after his retirement he was getting a medical allowance of Rs.100 per month as per Office Memorandum issued by the Department of Pension & Pensioners Welfare, vide No.F.No.45/57/97-P & PW (C), dated 19.12.1997. He had to undergo a bye-pass heart surgery in Sri Ramachandra Hospital, Porur. He claimed reimbursement of the medical expenditure in connection with such treatment. Since no reply was received, he filed O.A.No.194 of 2001. 3.1 The stand taken by the Department in such case was to the effect that the retired employee was not entitled to the benefit of CS (MA) Rules, the applicant was not a member of the CGHS and was only getting Rs.100/- per month as medical allowance and was not entitled to any reimbursement for indoor treatment. The Tribunal, relying upon the Office Memorandums dated 19.12.1997 and 5.6.1998, directed the Department to scrutinise under CS (MA) Rules, the claim made by the applicant for reimbursement of the expenditure incurred by him. The Tribunal, however, refused the claim of the applicant regarding payment of interest. 3.2. W.P.No.8822 of 2002 has been filed by such applicant challenging the order of the Tribunal relating to rejection of the claim for interest. Subsequently, the Union of India has filed W.P.No.32770 of 2004 challenging the direction of the Tribunal regarding reimbursement. 4. Similar claims by the retired employees for reimbursement of medical expenses as indoor patients were the subject matter of litigation in the subsequent Original Applications filed by such retired employees. Such Original Applications have been allowed by the Tribunal by following the order dated 23.11.2001 in O.A.No.194 of 2001 and such orders are the subject matter of challenge in W.P.Nos.28587, 32770, 34081, 34143, 34510, 37025 of 2004, 1713, 10677 of 2005 and 9719 of 2007 filed at the instance of the Union of India. 5. O.A.No.619 of 2002, the order wherein is the subject matter of challenge in W.P.No.663 of 2003, was filed by a retired employee belonging to Postal and Telegraph Department. Even though he wanted to avail the benefit of CGHS, his request was not https://hcservices.ecourts.gov.in/hcservices/ considered on the ground that he had retired at Trichy, where such claim has not been extended. The Madras Bench of the Central Administrative Tribunal by referring to the order passed by Bangalore Bench of the Central Administrative Tribunal in O.A.No.704 of 2001, wherein it was observed that the benefit of the CGHS cannot be confined only to the places where such facilities are available and similar benefits should be made available to the retired employees settled down at places not covered under the CGHS, directed the Department to grant the benefit of CGHS. Such order is the subject matter of challenge in W.P.No.663 of 2003 at the instance of the Union of India. 6. Similar orders were subsequently passed by the Tribunal in several other Original Applications, which are the subject matter of challenge at the instance of the Union of India in W.P.Nos.5575, 5775 of 2004, 18921 and 39282 of 2005. 7. As already indicated, the core question in all these writ petitions is reimbursement of medical expenditure incurred by retired Central Government employees including in the Department of Posts & Telegraphs. 8. So far as the Government servants are concerned, the rules relating to Medical Attendance are contained in CS (MA) Rules. All Government servants, except those in Railway service, and some other categories as indicated in such Rules, are covered under the Rules. However, as per Note 2, the Rules do not apply to the retired Government officials. The salient features of such Rules are to the effect that the concerned Government servant is entitled to treatment in an approved hospital, free of cost or on reimbursement basis. Such facility is available both as an out- patient or as an in-patient, subject to various rules and regulations, including CGHS, where such facilities are available. 9. So far as the retired employees are concerned, they can be covered under the Central Government Health Scheme, but CGHS as such may not be applicable to all. In this background, Vth Central Pay Commission had made a recommendation to the following effect :- "140.18. We have given due consideration to the various suggestions made to us in this regard and recommend that pensioners residing in an area not covered by CGHS, should be given a fixed amount of medical allowance at Rs.100 p.m. for meeting the expenditure on day-to-day medical expenses that do not require hospitalisation. In addition, CS (MA) Rues, 1944 should be extended to pensioners, in a restricted manner so as to facilitate reimburesement of expenditure on hospitalisation in a Government hospital / private https://hcservices.ecourts.gov.in/hcservices/ hospital recognised under CGHS or under CS(MA) rules for the purpose. Such reimbursement claim should be settled in full by the respective Ministry / department of the pensioner under the provisions of CS (MA) rules." (Emphasis added by us) 10. The aforesaid report of the 5th Central Pay Commission was apparently accepted by the Government as per Resolution No.45/86/97-P.PW (A) dated 30.9.1997. At any rate, the Ministry of Personnel, Public Grievances & Pension, issued an Office Memorandum dated 19.12.1997. Since the question now is vitally linked with such Office Memorandum, it is useful to extract the relevant paragraph of the said Office Memorandum :- "The undersigned is directed to state that in pursuance of the Government's decision on the recommendations of the 5th Central Pay Commission announced in this Department's resolution No.45/86/97-P.PW (A), dated 30.9.1997, sanction of the President is hereby accorded to the grant of fixed medical allowance @ Rs.100 p.m. to Central Government pensioners / family pensioners residing in areas not covered by Central Government Health Scheme administered by the Ministry of Health & Family Welfare and corresponding Health Schemes administered by other Ministries / Departments for their retired employees for meeting expenditure on day-to-day medical expenses that do not require hospitalisation. 2. These orders shall apply to Central Government pensioners / family pensioners, who at the time of retirement / death were governed by CCS (Pension) Rules, 1972 or other corresponding rules in operation prior to commencement of these rules and are eligible for medical facilities after retirement. Separate orders will be issued by the respective administrative authorities in respect of members of Armed Forces, All India Services and Railway pensioners / family pensioners. 3. Existing pensioners as well as the future retirees shall have to exercise one-time option to avail of medical facilities under CGHS or other similar Health Scheme of their respective Ministry / Department or to claim fixed medical allowance or Rs.100 p.m. In the case of future retirees, the option shall be obtained by the Head of Office along with other pension papers and in case the retiring employee opts for medical allowance, specific entry to this effect shall be made in both the halves of PPO. The CGHS or other medical authorities, while issuing card to the pensioner shall check the position in this regard from PPO and restrict the facilities to be made available accordingly, i.e. card is valid only for indoor / outdoor patient treatment, as the case may be. https://hcservices.ecourts.gov.in/hcservices/ 4. In the case of existing pensioners, if they opt for medical allowance, an undertaking shall be required to be submitted by claimants to the effect that they are entitled to medical facilities under CGHS or other similar scheme administered by the Central Government but are residing in areas where no such outdoor facilities are available. On the basis of this undertaking, pension disbursing authorities shall make an entry in regard to grant of medical allowance in the both halves of PPO of the individual concerned and authorize payment of medical allowance. Such an undertaking can be obtained by Bank, Departmental PAO and Treasury once every year along with other certificates, the pensioner is required to furnish. As and when grant of medical allowance to a pensioner / family pensioner is authorized by the pension disbursing authority, intimation in this effect shall be sent to the CPAO / concerned Pay & Accounts Office in the prescribed pro forma." 11. Subsequently, the Ministry of Health & Family Welfare took a decision as per Office Memorandum No.S-14025/4/96 dated 5.6.1998, which is to the following effect :- "Extension of CS (MA) Rules, 1944 to pensioners residing in areas not covered by CGHS The undersigned is directed to refer to the Department of Pension and Pensioners' Welfare, O.M.No.45/74/97-PP&PW(C), dated 15.4.1997 on the above subject and to say that it has been decided by this Ministry that the pensioners should not be deprived of medical facilities from the Government in their old age when they require them most. This Ministry has, therefore, no objection to the extension of the CS (MA) Rules to the Central Government pensioners residing in non-CGHS area as recommended by the Pay Commission. However, the responsibility of administrating the CS (MA) Rules for pensioners cannot be handled by CGHS. It should be administered by the respective Ministries / Departments as in the case of serving employees covered under CS (MA) Rules , 1944. The Department of Pension and Pensioners' Welfare would need to have the modalities worked out for the implementation of the rules in consultation with the Ministries / Departments prior to the measure being introduced to avoid any hardship to the pensioners. The pensioners could be given a one-time option at the time of their retirement for medical coverage under CGHS or under the CS (MA) Rules, 1944. In case of a pensioner opting for CGHS facilities, he / she would have to get himself / herself registered in the nearest CGHS city for availing of hospitalization facilities. In such cases, the https://hcservices.ecourts.gov.in/hcservices/ reimbursement claims would be processed by the Additional Director, CGHS of the concerned city. For those opting for medical facilities under the CS (MA) Rules, the scrutiny of the claims would have to be done by the parent office as in the case of serving employees and the payment would also have to be made by them. The list of AMAs to be appointed under CS (MA) Rules would be decided Ministry / Department-wise as provided under the rules. The beneficiaries of the CS (MA) Rules, 1944 would be entitled to avail of hospitalization facilities as provided under these rules. The Department of Pension and Pensioners' Welfare are requested to take further necessary action in the matter accordingly." 12. Subsequently, however, the Ministry of Health & Family Welfare by Office Memorandum No.S.14025/4/96-MS dated 20.8.2004 seems to have backtracked on its earlier Office Memorandum dated 5.6.1998 by issuing the following clarification :- "The CS (MA) Rules, 1944 is not applicable to the Central Government pensioners. The 5th Central Pay Commission had recommended extension of CS (MA) Rules, 1944 to the Central Government pensioners residing in the areas not covered by CGHS. On a reference received from the Department of Pension and Pensioners Welfare on this subject, the response of the Department of Health had been conveyed through the O.M.No.S.14025/4/96-MS dated 5.6.1998. The response of this Department was that it did not have any objection to the proposal of extension of CS (MA) Rules, 1944 to central government pensioners residing in non-CGHS areas as recommended by the 5th Pay Commission, subject to the condition that the responsibility of administering the CS (MA) Rules, 1944 for pensioners would be of the Departments / Ministries concerned. The said O.M. dated 5.6.1998 was in reply to a reference in O.M.No.45/74/97 PP&PW(C) dated 15.4.97 from the Department of Pensions and Pensioners' Welfare. After that also communication between these two departments had continued on this subject. In fact in a subsequent O.M. of the same number dated 12.1.1999, the views of all the Ministries / Departments of the Government of India had been sought before a final decision could be taken. But unfortunately, the O.M. dated 5.6.1998 has been misinterpreted by some pensioners as the final order of the Government of India to extend CS (MA) Rules, 1944 to pensioners. A lot of avoidable litigation has already taken place, because some pensioners have obtained favourable orders from various courts / tribunals on the https://hcservices.ecourts.gov.in/hcservices/ basis of the said O.M. dated 5.6.1998. It is therefore considered necessary to clarify unequivocally that the O.M. dated 5.6.1998 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 decision without obtaining the 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. Therefore, any interpretation based on the O.M. dated 5.6.98 of this Department that the pensioners come within the purview of the CS (MA) Rules, 1944 is wholly misplaced. 13. On a careful reading of the CS (MA) Rules and the CGHS and the various Office Memorandums issued by various Ministries from time to time, the following picture emerges :- (1) A person in employment under the Central Government has the benefit of CS (MA) Rules, 1944, and can have the benefit of CGHS and similar benefits given by any other Department depending upon the place of posting. There is no difficulty relating to any Central Government employee relating to treatment as indoor or outdoor patient. (2) The CS (MA) Rules, 1944 are not applicable to the retired employees by virtue of Note No.2(iv) of Rule 1 of CS (MA) Rules. (3) Even though V Pay Commission had made a strong recommendation for extending the medical facilities contemplated under the CS(MA) Rules, 1944 to the retired employees and even though in principle the Ministry of Health and Family Welfare and even the Department of Pension and Pensioners' Welfare seem to have accepted such recommendation, the modalities, as suggested by the Health Ministry, are yet to be worked out and no final decision appears to have been taken. (4) A person belonging to the Posts and Telegraphs Department is entitled to medical facilities contemplated by the Department; a retired employee can avail of indoor and outdoor facilities available under CGHS, provided he becomes a member and makes the contribution. (5) Where there is no CGHS facility available for outdoor treatment, a retired employee can avail monthly allowance of Rs.100/- in order to meet day-to-day medical expenses. Similarly he can avail of treatment as indoor patient at the nearest CGHS https://hcservices.ecourts.gov.in/hcservices/ approved hospital, provided he opts for it and makes some contribution. 14. As a necessary inference from the above, it is clear that if a quondam employee happens to be a resident of a place where CGHS facilities are available, he can avail the facilities both as outdoor and indoor patient and, if such facilities are not available, he can avail Rs.100/- per month for day today medical expenses. Where accidentally a retired employee resides at a place where there is no CGHS facilities, even though he may receive Rs.100/- as medical allowance to meet his day-to-day medical expenses, he does not have any privilege of being treated as indoor patient. Only to ameliorate such a situation, 5th Central Pay Commission had recommended for extending the benefit available under the CS (MA) Rules. 15. The Central Administrative Tribunal of the Madras Bench, while deciding O.A.No.194 of 2001 and recognising the aforesaid position, observed that the decision had been taken vide resolution dated 30.9.1997 to accept the recommendation of the V Pay Commission, which has been communicated by the Ministry of Health vide Office Memorandum dated 19.12.1997 and Office Memorandum dated 5.6.1998 and, therefore, a retired Central Government employee is entitled to indoor facilities at par with the Government servants. The Bangalore Bench of the Central Administrative Tribunal seems to have taken the view that it would be violative of Article 14 of the Constitution if the retired employees residing at a place not covered by CGHS are not extended the same facilities as it is made available to the retired employees residing within the areas coming under CGHS. Even though Ernakulam Bench of the Central Administrative Tribunal had taken a similar view, such decision was reversed by the Kerala High Court in W.P.(C)Nos.14055 of 2006 & connected matters. 16. The various counsels representing the Central Government or the Departments thereof, almost in one voice, have contended that even though 5th Central Pay Commission has recommended for applying the provisions of CS (MA) Rules, to all retired employees of the Central Government and even though the Ministry of Health and Family Welfare has intimated that it has got no objection for extension of such Rules, the matter has not been finalised and neither the rules have been amended nor any order has been issued for extending such benefit to the retired employees of the Government. It has been submitted by the counsels that as a matter of fact the Office Memorandum dated 20.8.2004 has made the position clear. It has been therefore submitted that only those who are members of the CGHS and are issued CGHS cards are entitled to treatment either as out-patient or as in-patient depending upon the CGHS Card and the retired employees cannot claim any benefit other than what is contemplated under the CGHS. https://hcservices.ecourts.gov.in/hcservices/ 17. They have placed strong reliance upon the unreported decision of the Kerala High Court in