WP(C) 3823/2007 BEFORE THE HON’BLE MR. JUSTICE A.C.UPADHYAY Heard Mr. P. C. Dey, learned counsel for the petitioner and Mr. D. Bhatt acharjee, learned Standing counsel, respondent-ASEB. 2. By this writ petition the petitioner representing all retired employees of the Assam State Electricity Board (in short ’ASEB), prayed for issu ing a direction to the respondent ASEB to provide medical reimbursement faciliti es to the retired employees at par with the serving employees of the ASEB or sim ilar to that of the retired employees of the State Government of Assam in terms of the provisions made under the Assam Medical Attendance Rules, 1976. 3. It has been stated on behalf of the petitioners that petitione rs’ Association on number of occasions approached the respondent authorities t o fulfill their legitimate demand of providing medical re-imbursement facilit ies after retirement, at par with the serving employees of the ASEB or in the manner prescribed for retired State Government employees. It has been further s tated that in spite of repetitive appeal and representation on the issue in ques tion, the respondent authorities concerned have not taken any beneficial steps t o fulfill their legitimate demands. So this writ petition. 4. Learned counsel for the petitioner has contended that a directio n may be issued to the respondent authorities to provide medical re-imbursement facilities to the retired pensioners of ASEB to save their life from major dis eases in old age and also submitted that right to Medical Aid to protect the health of the member of staff while in service and after the retirement is a fu ndamental right under Article 21 read with Article 39(e), 41,43 and 48(A) of the Constitution of India. In support of his contention learned counsel for the pe titioner has relied on the decision of the Hon’ble Supreme Court of India repor ted in AIR 1995 SC 922 (Consumer Education and Research Centre and others Vs. Un ion of India and others), wherein the Hon’ble Supreme Court has held that all e mployers are enjoined to take all actions to promote health, strength and vigor of workman during employment and leisure and health, even after retirement. The relevant extracts of the observations made by the Hon’ble Supreme Court in the aforesaid decision may be reproduced below :- . 26. The right to health to a worker is an integral facet of meaningf ul right to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denude s his livelihood. Compelling economic necessity to work in an industry exposed t o health hazards due to indigence to bread winning to himself and his dependents should not be at the cost of the health, and vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman. Provision for medical test and treatment invigorates the health of the worker for higher production or efficient service. Continued treat ment, while in service or after retirement is a moral, legal and constitutional concomitant duty of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 rea d with Articles 39(c), 41 and 43 of the Constitution and make the life of the wo rkman meaningful and purposeful with dignity of person. Right to life includes p rotection of the health and strength of the worker is a minimum requirement to e nable a person to live with human dignity. The State, be it Union or State Gover nment or an industry, public or private, is enjoined to take all such action whi ch will promote health, strength and vigour of the workman during the period of employment and leisure and health even after retirement as basic essentials to l ive the life with health and happiness. The health and strength of the worker is an integral facet of right to life. Denial thereof denudes the workman the fine r facets of life violating Art.21 . The right to human dignity, development of p ersonality, social protection, right to rest and leisure are fundamental human r ights to a workman assured by the Charter of Human Rights, in the Preamble and A rts. 38 and 39 of the Constitution . Facilities for ,medical care and health aga inst sickness ensures stable manpower for economic development and would generat e devotion to duty and ded8cation to give the workers best physically as well as mentally in production of goods or services. Health of the worker enables him t o enjoy the fruit of his labour, keeping him physically fit and mentally alert f or leading a successful life, economically, socially and culturally. Medical fac ilities to protect the health of the workers are, therefore, the fundamental and human rights to the workmen. 27. Therefore, we hold that rights to health, medical aid to protect the healt h and vigour of a worker while in service or post retirement is a fundamental ri ght under Article 21, read with Articles 39(e) 41, 43, 48(A) and all related to Articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person. 31. & &It is, therefore, settled law that in public law claim for compensation is a remedy available under Article 32 or 226 for the enforcement and protectio n of fundamental and human rights. The defence of sovereign immunity is inapplic able and alien to the concept of guarantee of fundamental rights. There is no qu estion of defence being available for constitutional remedy. It is practical and inexpensive mode of redress available for the contravention made by the State, its servants, its instrumentalities, a company or a person in the purported exer cise of their powers and enforcement of the rights claimed either under the stat utes or licence issued under the statute or for the enforcement of any right or duty under the Constitution of any right or duty under the Constitution or the l aw. 5. It cannot lost sight of that in a social welfare state pension a nd post retrial benefits such as facilities for medical treatment or reimburseme nt of medical expenses are some socio economic justice measures to provide reli ef when advancing age gradually but irrevocably impairs capacity to stand on one s own feet . As amatter of fact benefit of post retiral schemes are made availab le for past satisfactory service rendered by the employees to avoid destitution in old age. 6. Hon’ble Supreme Court in Consumer Education and Research Centre and others -vs- Union of India (1995) 3 SCC 42 held that continued treatment, while in service or after retirement is a moral, legal and constitutional concomitan t duty of the employer and the State. Therefore, it must be held that the righ t to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution and make the life of the workman meaningful and purposeful with dignity of person. He observation reflected on the above decision reads as follows: 24. The expression ’life’ assured in Art.21 of the Constitution does n ot connote mere animal existence or continued drudgery through life. It h as a much ideal meaning which includes right to livelihood, better standard of life, hygienic conditions in work place and leisure. In Olga Tellis v. Bomb ay Municipal Corporation, 1985(3) SCC 545, this Court held that no person can li ve without the means of living i.e. means of livelihood. If the right to liveli hood is not treated as a part of the constitutional right to life, the easiest w ay of depriving a person of his right to life would be to deprive him of his me ans of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content of meaningfulness but it would ma ke life impossible to live, leave aside what makes life liveable. The right to life with human dignity encompasses within its fold, some of the finer facets of human civilisation, which makes life worth living. The expanded connotation of life would mean the tradition and cultural heritage of the persons concerned. In State of H.P. v. Umed Ram Sharma, (1986)2 SCC 68, this Court held that th e right to life includes the quality of life as understood in its richness a nd fullness by the ambit of the constitution. Access to road was held to be an access to life itself in that state. 25. In Sunil Batra v. Delhi Administration, (1978) 4 SCC 494, considering t he effect of solitary confinement of a prisoner sentenced to death and the me aning of the word ’life’ enshrined under Article 21, the Constitution Bench h eld that the quality of-life covered by Article 21 is something more than the dy namic meaning attached to life and liberty. The same view was reiterated in Boar d of Trustees of the port of Bombay v. D.R. Nadkarni, (1983) 1 SCC 124, Vikrant Deo Singh Tomar v. State of Bihar, (1988) Suppl.SCC 734, R.Autyanuprasi v . Union of India, (1989)1 Suppl. SCC 251. In Charles Sobraj v. Supdt. Centr al Jail, Tihar, AIR 1978 SC 1514, this Court held that the right to life includ es right to human dignity. The right against torture, cruel or unusu al punishment or degraded treatment was held to violate the right to life. In B andhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 at 183-84, this Court h eld that the right to live with human dignity, enshrined in Article 21, derives its life-breath from the directive principles of the State policy and particula rly Clauses (e) and (f) of Article 39 and Articles 41 and 42. In C.E.S.C. Ltd . & Ors. v. Subhash Chandra Bose, 1992(1) SCC 441, considered the gamu t of operational efficacy of Human Rights and the constitutional righ ts, the right to medical aid and health and held that the right to social just ice are fundamental rights. Right to free legal aid to the poor and indi gent worker was held to be a fundamental right in Khatri (11) v. State of Bih ar, (1981)1 SCC 627. Right to education was held to be a fundamental right vi de Maharashtra State B.O.S. & H.S. Education v. K.S. Gandhi, 1991(2) SCC 716. and UnniKrishnan v. State of A.P., (1993)1 SCC 645. 26. The right to health to a worker is an integral facet of meaningful rig ht to life to have not only a meaningful existence but also robust health and vigour without which worker would lead life of misery. Lack of health denudes his livelihood. Compelling economic necessity to work i n an industry exposed to health hazards due to indigence to bread-winning t o himself and his dependents, should not be at the cost of the health an d vigour of the workman. Facilities and opportunities, as enjoined in Article 38, should be provided to protect the health of the workman. Provisi on for medical test and treatment invigorates the health of the worker for hi gher production or efficient service. Continued treatment, while in se rvice or after retirement is a moral, legal and constitutional concomitant dut y of the employer and the State. Therefore, it must be held that the right to health and medical care is a fundamental right under Article 21 read with Artic les 39(c), 41 and 43 of the Constitution and make the life of the workman meani ngful and purposeful with dignity of person. Right to life includes protectio n of the health and strength of the worker is a minimum requirement to enable a person to live with human dignity. The State, be it Union or Sta te government or an industry, public or private, is enjoined to take all such a ction which will promote health, strength and vigour of the workman dur ing the period of employment and leisure and health even after retirement a s basic essentials to live the life with health and happiness. The health a nd strength of the worker is an integral facet of right to life. Den ial thereof denudes the workman the finer facets of life violating Art.21. The right to human dignity, development of personality, social protection, right to rest and leisure are fundamental human rights to a workman assured by the Charter of Human Rights, in the Preamble and Arts.38 and 39 of the Constitution. Facilities for medical care and health against sickness ensures stable manpower for economic development and would generate devotion to duty and dedication to give the workers’ best physically as well as mentally in production of goods or services. Health of the worker enables him to enjoy t he fruit of his labour, keeping him physically fit and mentally alert for le ading a successful life, economically, socially and culturally. Med ical facilities to protect the health of the workers are, therefore, the fundame ntal and human rights to the workmen. 7. The issue in question before this court is a clear matter of poli cy having financial and other economic implications, therefore, this Court while exercising jurisdiction under Article 226 of the Constitution of India would be hesitant to enter in the domain of the Executive to give directions to the resp ondent ASEB to grant medical reimbursement to the retired employees of the bank. The Apex Court in its authoritative pronouncement dealing with the issue of med ical reimbursement in the matter of State of Punjab and Ors. v. Ram Lubhaya Bagg a and Ors. (1998) 4 SCC 117 observed as under: 22. & & &.. So far as questioning the validity of governmental policy is concern d in our view it is not normally within the domain of any court, to weigh the pr os and cons of the policy or to scrutinize it and test the degree of its benefi cial or equitable disposition for the purpose of varying, modifying or annulling it, based on however sound and good reasoning, except where it is arbitrary or violative of any constitutional, statutory or any other provision of law. When G overnment forms its policy, it is based on number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinio n; it would be dangerous if court is asked to test the utility, beneficial effec t of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm, which belongs to the execu tive. It is within this matrix that it is to be seen whether the new policy viol ates Article 21 When it restricts reimbursement on account of its financial cons traints. 23. When we speak about a right, it correlates to a duty upon another, individu al, employer, Government or authority. In other words, the right of one is an ob ligation of another. Hence the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47 it is for the State to secure health to its citizen as its primary duty. No dou bt Government is rendering this obligation by opening Government hospitals and h ealth centers, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, to reduce the queue of waiting lists, and it has to provide all facilities for which an employee looks for at another hospi tal. Its up-keep; maintenance and cleanliness has to be beyond aspersion. To emp loy the best of talents and tone up its administration to give effective contrib ution. Also bring in awareness in welfare of hospital staff for their dedicated service, give them periodical, medico-ethical and service oriented training, not only at the entry point but also during the whole tenure of their service. Sinc e it is one of the most sacrosanct and valuable rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of this welfare State l ooks towards the State for it to perform its this obligation with top priority i ncluding by way of allocation of sufficient funds. This in turn will not only se cure the right of its citizen to the best of their satisfaction but in turn will benefit the State in achieving its social, political and economical goal. For e very return there has to be investment. Investment needs resources and finances. So even to protect this sacrosanct right finances are an inherent requirement. Harnessing such resources needs top priority. 24. Coming back to test the claim of respondents, the State can neither urge nor say that it has no obligation to provide medical facility. If that were so it w ould be ex facie violative of Article 21. Under the new policy, medical facility continues to be given and now an employee is given free choice to get treatment in any private hospital in India but the amount of payment towards reimbursemen t is regulated. Without fixing any specific rate, the new policy refers to the o bligation of paying at the rate fixed by the Director. The words are; ..to the level of expenditure as per the rate fixed by the Director, Health and Family Welfare, Punjab for a similar treatment package or actual expenditure whi ch ever is less.. 26. No State or any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for providing medical facilities to its citizen including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixati on of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India. 27. In Vincent v. Union of India (1987) 2 SCR 468: In a welfare State, therefore, it is the obligation of the State to ensure the c reation and the sustaining of conditions congenial to good health.... In a serie s of pronouncements, during the recent years, this Court has culled out from the provisions of Part-IV of the Constitution, the several obligations of the State and called upon it to effectuate them in order that the resultant picture by th e Constitution fathers may become a reality. 28 & & & & & 29. Any State endeavor for giving best possible health facility has direct co-re lation with finances. Every State for discharging its obligation to provide some projects to its subject requires finances. Article 41 of the Constitution gives recognition to this aspect. ’Article 41: Right to work, to educate and to publ ic assistance in certain cases: The State shall, within the limits of its econom ic capacity and development, make effective provisions for securing the right to work, to education and to public assistance in cases of unemployment, old age s ickness and disablement, and in other cases of undeserved want. 8. There is no dispute that that the right to life has to be given a v ital meaning which includes better standard of living and not merely animal exis tence. There cannot be any dispute with the said proposition that the right to h ealth is an integral facet of the meaningful right to life and any denial of the same would be in stark violation of fundamental rights of the citizens as guara nteed to them under Article 21 of the Constitution of India. 9. Contesting the above submissions of counsel for the petitioner, Mr. Bhattacharya, counsel for the respondent ASEB, submitted that the petitioner s have no legal right to enforce claim for the grant of medical reimbursement by approaching this Court in the writ jurisdiction. Mr. Bhattacharya further submi tted that the petitioners do get retirement l benefits including lump sum medica l allowances, besides receiving their monthly pension and under the rules, there fore they can not claim grant of medical reimbursement after retirement. Couns el also submitted that in the absence of any rules and also in the absence of an y provisions made to that effect the petitioners are not entitled to claim his m edical reimbursement. 10. In the above context the learned counsel for the respondent ASEB ha s submitted that ASEB is also extending medical benefit to its retired employees together with pension at the rate of Rs. 375/- per month and neither rule has been framed by the ASEB, nor any rule has been adopted so far or any guideline s have been issued to extend the medical re-imbursement facilities at par with S tate Government employees. Learned counsel for the respondent ASEB submits that it is not feasible on the part of the respondent ASEB to extend medical facilit ies to the retired employees at par with the serving employees of ASEB or in ter ms of Assam Medical Attendance Rules, 1976 and submitted that this Court in the absence of such rules, guidelines ,may not issue any direction for payment of me dical re-imbursement facilities to the retired employees of the respondent ASEB. 11. There is no dispute that reimbursement of medical expenses faci lity is available only to the serving employees of ASEB and not to its retired e mployees. It is also not in dispute that neither the service conditions nor any rules prescribe medical reimbursement to the retired employees of ASEB. So f ar there has been no provision for reimbursement of the medical expenses incurre d by the retired employees of the ASEB, and they are ineligible to claim such me dical reimbursement after their retirement. 12. In support of his contention learned counsel for the respondent ASEB has relied on a decision of the Hon’ble Supreme Court in (1991) 3 SCC 11 (U nion of India and others Vs. Tejram Parasharamji Bombhate and others), wherein it has been held that No tribunal or court can compel the government to change its policy which involves financial burden on it. 13. The learned counsel for the petitioner in the present case has also raised the issue of discrimination by drawing attention of this court to the facility of medical reimbursement available to government servants, while denyin g the same facilities to other retired employees of ASEB. The case of the petit ioner is that although they are retired employees of the corporation, still bei ng discriminated since alike treatment is not extended to them. The service cond itions of the retired Government employees are not at par with that of the peti tioners and therefore the petitioners cannot claim being a victim of any discrim ination by virtue of medical reimbursement being denied, as all of them are gove rned by a separate set of service conditions. I find this argument devoid of any merit as no equality can be claimed by ASEB employees with that of the state G overnment employees. Here, it would be useful to refer to the following para of the judgment of the Apex Court in State of Karnataka and Anr. v. Sri R. Vivekana nda Swamy AIR 2008 SC 2080, where it was held that: It, however, goes without saying that while exercising such a power, the author ity must act judiciously keeping in mind the purport and object thereof. Conside rations there for, although may not partake a