HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.Nos.24000 OF 2005, 1100 OF 2005, 623 OF 2008 and W.A.No.982 of 2006 DT. 15-12-2009 WP No.24000 OF 2005 BETWEEN: 1. The Chief Postmaster General,A.P.Circle, Dak Bhava, Abids, Hyderabad-500 001 and another …Petitioners V. K. Subba Raju and others. ..Respondents WP No.1100 OF 2005 BETWEEN: The Union of India, Rep. By Secretary to Govt. of India, Ministry of Communications, Dak Bhavan, Sansad Mard, New Delhi-1 & Others. …Petitioners V. A.S.Sarma ..Respondent WP No.623 OF 2008 BETWEEN: The Principal Chief Postmaster General, A.P.Circle, Hyderabad. …Petitioner V. T.Koteswar Rao (Retd. Postmaster), Plot No.226, H.No.12-86, PRR Township, Meerpet, Hyderabad & Another. ..Respondents W.A. No.982 OF 2006 BETWEEN: M.V.Shankara Rao …Appellant V. The Chairman, Tobacco Board, Guntur & 3 others. ..Respondents THIS COURT MADE THE FOLLOWING: HON’BLE SRI JUSTICE A.GOPAL REDDY AND HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU W.P.Nos.24000 OF 2005, 1100 OF 2005, 623 OF 2008 and W.A.No.982 of 2006 COMMON JUDGMENT: (Per the Hon’ble Sri Justice A. Gopal Reddy) In W.P. Nos.24000 of 2005, 1100 of 2005 and 623 of 2008 the petitioners obtained a rule from this court calling upon the respondents to show cause as to why a writ of certiorari should not be issued for quashing the orders passed in OA No.828/2004 dt. 10-3-2005; OA No.1415/1997 dt. 9-9-2004; and O.A.No.112 of 2006 on the file of Central Administrative Tribunal, Hyderabad Bench at Hyderabad. W.A. No.982 of 2006 is directed against the orders passed in WP No.26353/2005, whereby the appellant-writ petitioner was directed to pursue his remedy. Since one and the same issue, namely, whether the Central Government Pensioners are entitled for reimbursement of the amounts in terms of Civil Service (Medical Attendance) Rules, 1944 (for short ‘Rules, 1944’) incurred by them for the treatment they had undergone and whether the retired Central Government Official who enrols himself under Central Government Health Scheme (for short ‘CGHS’) initially but in fact, residing in an area not covered under the scheme will be entitled to claim reimbursement or not?, involved in all these matters, they are clubbed together and disposed of by this common order. The applicant in O.A. No.828 of 2004 retired from service on 31-8- 1987 and permanently settled at Vijayawada and was served by the P & T Dispensary at Vijayawada as there is no CGHS dispensary at Vijayawada. For the heart ailment, on the advise of the Doctors, he was shifted to Yashoda Hospital, Malakpet, Hyderaband on 8-5-2000. He underwent angioplasty operation on 8-5-2000. He has also undergone Coronary Artery Bypass Surgery on 17-5-2000. On 27-5-2000 he has undergone Percutaneous Transluminal Angioplasty tenting to right common iliac artery. He was under medical treatment from 1-5-2000 and was discharged on 29-5-2000. He has incurred a sum of Rs.2,51,651/- as per the bills issued by the hospital. After discharge, the applicant submitted his claim to the Writ Petitioners in W.P.No.24000 of 2005, which was rejected vide order dt. 29-6-2000 on the ground that retired officials are not entitled to medical reimbursement claims under the Rules, 1944. Challenging the said order, nearly four years after the treatment, he filed OA No.828/2004 before the Central Administrative Tribunal, Hyderabad Bench at Hyderabad. The Tribunal by order, dated 10.3.2005 allowed the O.A. Similarly, the applicant in OA No.1415 of 1997 retired from service on 30-11-1989 as Deputy Post Master of Maharanipeta Head Post Office, Visakhapatnam. He got admitted in King George Hospital, Visakhapatnam for his heart problem, where pace-maker implantation was done on 11-4- 1996, for which he spent more than R.56,500/-. Thereafter, he submitted his medical bill for the amount incurred towards the said heart surgery and claimed reimbursement of the medical expenses at Rs.56,472-50 from the Post Master General on 24/27-5-1996. On rejecting the said claim, he requested the Chief Post Master General, A.P. Circle to reconsider his claim, and the same was also rejected. Therefore, he filed OA No.1415 of 1997 before the Central Administrative Tribunal, Hyderabad. The Tribunal by order, dated 9.9.2004 allowed the O.A. The applicant in OA No.112 of 2006 on retiring from service as Post Master on 31-10-1992 has not enrolled himself as a member of CGHS prior to his retirement. He made a representation to the Deputy Director, CGHS, Begumpet, (the second respondent in WP No.623/2006) herein on 10-7- 2000 requesting for issuance of CGHS card. As his representation was not disposed of, he submitted another representation to the Director General of Health and Family Welfare on 4-10-2002 requesting to issue instructions to the concerned authorities for issuance of CGHS card. Meanwhile, the applicant’s wife underwent treatment during the period from 23-8-2002 to 9-9-2002. He submitted a medical bill for reimbursement to the Chief Post Master General, A.P. Circle, Hyderabad for Rs.66,088/- along with his representation dt. 16-2-2002. As there was no response to the said representation, he submitted another representation on 7-3-2005. On such representation, the Chief Post Master General, A.P. Circle through memo dt. 17-1-2006 informed the applicant that retired officials are not entitled to financial assistance and his case cannot be considered. Questioning the same, the applicant approached the Tribunal by filing OA No.112/2006 before the Central Administrative Triunal, Hyderabad Bench, Hyderabad. The Tribunal allowed OA quashing the memo dt. 17-1-2006 directing the respondents therein to extend the financial assistance as claimed by the applicant as per rules and pay the amount due to the applicant within two months from the date of submission of the claim subject to fulfilment of the requirements prescribed under the rules.. Questioning the correctness of the same, the Chief Post Master General filed WP No.623 of 2008. Sri A. Rajasekhar Reddy, learned Asst. Solicitor General of India appearing on behalf of the writ petitioners and the appellant in writ appeal contended that the Tribunal erred in entertaining O.A. No.828 of 2004 in the year 2004 nearly after four years after rejection of the claim for reimbursement on 29-6-2000 and any application before the Tribunal should be filed within one year from the date of arising cause of action as per Sec.21 of the Administrative Tribunals Act. Therefore, the Tribunal ought not to have entertained the O.A. He further contended that Office Memorandum dt.5-6-1998 is relating to the proposal for extension of Rules,1944 to the pensioners and it is emanated during intra-departmental correspondence and the same does not confer any right unless the Rules, 1944 are amended suitably, and the same has already been clarified by Office Memorandum dt. 20-8-2004 by the Government of India, Ministry of Health and Family Welfare. He further contended that as per Cl. (iv) to Note.2 of Central Services (Medical Attendance) 1944, the rules do not apply to the retired Government officials. When the Rules, 1944 do not apply to the retired government officials, issuing a direction by the Tribunal for reimbursement of medical expenses incurred for non-existing right does not arise. By placing reliance on the judgment of the Supreme Court in Transocean Shipping Agency (P) Ltd. V. Black Sea Shipping[1], he contended that in policy matters particularly when financial implications are involved, courts should be slow in allowing claims and it should be left open to the discretion of the authorities. Per contra, Sri U.R.S.Gurupadam, learned counsel appearing for the respondent in W.P.No.24000 of 2005 contended that under Office Memorandum, dated 5.6.1998 it has been decided to extend the Rules, 1944 to pensioners residing in areas not covered by CGHS. Taking into consideration of the same, the Central Administrative Tribunal, Jabalpur Bench in the case of Sri Lakshmichand v. Controller and Auditor General of India, New Delhi[2] held that medical reimbursement cannot be denied merely on the ground that the retired employee is not a member of CGHS or that they did not come under the purview of the Medical Attendance Rules and directed the respondents therein to reimburse the admissible amounts spent by the employee for treatment. Similar orders were passed by the Central Administrative Tribunal, Bangalore Bench in K.P.G. Nair v. Superintending Engineer Survey of India & Others[3] and the same was also confirmed by the High Court and therefore, the respondent cannot be denied of the medical reimbursement and the Tribunal rightly allowed the O.A. following the earlier orders passed by the other Benches at various places. He further contends that as per Article 14 of Constitution of India, there cannot be any discrimination in between the retired Government Servants and serving Government Servants. Sri Aka Venkataramana, learned counsel for the respondent in W.P.No.1100 of 2005 while adopting the submissions made by Sri Gurupadam would contend that the Chennai Bench of the Tribunal laid down criteria with regard to the applicability of the scheme to the pensioners who come under the category of ‘C’ of para 7 of the said decision and the same was brought to the notice of the Tribunal. Further the Central Administrative Tribunal, Ahmadabad Bench in O.A.No.631 of 2001, dated 1.9.2002 while referring to the Office Memorandum, dated 17.12.1990 issued by the Central Government framing certain rules for availing the CGHS facilities for civilian central pensioners, held that the rules permit pensioners to be enrolled within CGHS even if they had not availed the benefit of the said scheme during the service and holding so, allowed the O.A. directing the respondents therein to entertain the medical reimbursement claimed by the applicant therein. It was also held that merely on the technical grounds that some circulars of the Government prohibit the pensioners from availing the CGHS facilities, the pensioners cannot be denied their fundamental right and such circulars are discriminative in nature. In view of the same, it is contended that the Tribunal has not committed any error in allowing the O.A. filed by the respondent for reimbursement of medical expenditure incurred by him and therefore, the impugned order does not call for any interference by this Court. In view of the above rival submissions, the point that arises for consideration is ‘whether the Tribunal committed any illegality in issuing the direction to the writ petitioners for reimbursement of medical expenditure incurred by the respondents? It is not disputed that while extending the Civil Service (Medical Attendance) Rules, 1944 to the Railway employees on deputation to various other offices under the Central Government, under note No.2(iv) it is clearly mentioned that the Rules do not apply to retired Government officials. Through it was decided in the Office Memorandum No.S- 14025/4/96-MS, dated 5.6.1998 issued by Ministry of Health & Family Welfare for extension of Rules, 1944 to pensioners residing in areas not covered by CGHS facilities and the list of AMAs to be appointed under the Rules, 1944 would be decided by Ministry/Department-wise as provided under the rules, and that the beneficiaries of the Rules, 1944 would be entitled to avail of hospitalisation facilities as provided under the Rules. Under the note, the Ministry of Health and Family Welfare has stated that they have no objection to the extension of Rules, 1944 to Government pensioners residing in non-CGHS areas. It was also stated that further follow-up action is to be taken in this regard, and that the administering ministry for Rules, 1944 being Ministry of Health & Family Welfare have to, in the first instance, bring in an amendment to include “Central Govt. Pensioners & Family Pensioners in Note No.3 and to delete the words “Retired Govt. Officials” in Note (2) (iv) of the said Rules. Though it was decided through the said office memorandum, no corresponding amendment has been carried out to the Rules, 1944. Subsequently, the Ministry of Health & Family Welfare Department in its office memorandum No.S-14025/4/96-MS, dated 20.08.2004 clarified that the earlier office memorandum, dated 5.6.1998, as referred to above, was not intended to be final order extending the applicability of Rules, 1944 to pensioners. It was also expressed that 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 and 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 the Rules, 1944 to pensioners. It was categorically held therein that any interpretation based on Office Memorandum, dated 5.6.1998 of the Department that the pensioners come within the purview of the Rules, 1944 is wholly misplaced. Under those circumstances, the Tribunal erred in allowing the O.As. filed by the respondents and appellant on the premise that by Office Memorandum, dated 5.6.1998 the Department extended the applicability of Rules, 1944 to the pensioners. It is also brought to our notice that the High Court of Kerala in W.P.(c) No.14055 of 2006, by order, dated 18.10.2006 set aside the order of the Central Administrative Tribunal, Ernakulam Bench passed in O.A.No.242 of 2005 holding that the Rules, 1944 are applicable only for those in service. It was observed that unless the Department or Office has taken the Office Memorandum, dated 5.6.1998 as an order extending the benefit of Rules, 1944, the pensioners are not entitled for reimbursement of medical expenditure. The Kerala High Court further rejected the contention of discrimination since the CGHS is a different scheme as compared to the Central Services (Medical Attendance), Rules, 1944, and that the CGHS is available only in notified areas like certain important cities alone and therefore, when there is such nexus for implementing CGHS and implementation and extension of Rules, 1944 is on a different footing, Article 14 cannot be pressed into service any more. In yet another case in O.A.No.74 of 2005 in which, when the applicant retired on reaching the age of superannuation on 30.4.1992 and at that time he was residing at Chrompet and that he was not a member of CGHS and that he was availed AMA facilities in lieu of Central Government Health Scheme, the Central Administrative Tribunal, Madras Bench by order, dated 25.7.2005 while dismissing the O.A. observed that: “The question of extending the benefits to all the pensioners could only be a policy decision. When the Government of India formulated the scheme in the year 1954 it was subject to the specific condition i.e. exclusion of P&T employees who had their own medical facilities. When it was extended it was confined only to those employees who were members of CGHS prior to their retirement. It will not be permissible for the Tribunal to compel the Govt. to include in the scheme every retired employee for the CGHS facilities. The first respondent has set out in clear terms about the conditions to provide medical facilities and the same cannot be extended beyond it. The applicant has not made out a legal right for such a claim.” The Supreme Court in Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. V. Sipahi Singh & Others[4] after referring to its earlier decision rendered in Lekhraj Satramdas Lalvani v. Deputy Custodian-cum-Managing Officer[5]; Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College[6] and Dr. Umakant Saran v. State of Bihar[7], observed at paragraph 15 as follows: “…………There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance………” Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of such statutory duty cast upon the authorities. Coming to the facts of the case on hand, though the 5th Pay Commission recommended for extension of benefits of Rules, 1944 to the pensioners, the same has so far not been accepted by the Central Government. Further the Ministry of Health & Family Welfare by its Office Memorandum, dated 20.8.2004 clarified that its earlier Office Memorandum, dated 5.6.1998 was not intended to be final order extending the applicability of Rules, 1944 to the pensioners. When each department has to take a policy decision taking into consideration of the financial implications, it is not feasible to extend the Rules, 1944 to pensioners and therefore, no mandamus can be issued to extend the said benefits to the pensioners-respondents herein which will have financial implications as held by the Apex Court in State of Punjab v. Ram Lubhaya Bagga[8]. Further a mandamus to disobey the law cannot be issued but can be issued only to enforce any legal right. Unless there is any enforceable right, the plea of discrimination cannot be claimed. Further it is now fairly well settled that a person cannot claim benefit on the basis of a wrong order and though some persons derived benefits illegally for the similar circumstanced claim, the same cannot be claimed on the ground of equality as that would amount to perpetuating the illegality, which the Courts cannot do (see Secretary, Jaipur Development Authority v. Daulat Mal Jain (1997) 1 SCC 35 and Coromandel Fertilizers Ltd. V. Union of India AIR 1984 SC 1772). Under those circumstances, the orders passed by the Tribunal allowing the impugned O.As. contrary to the Rules, 1944 cannot be sustained and the same are accordingly set aside. The petitioners are directed to consider the claim of the respondents as per the existing rules for reimbursement of medical expenditure incurred by them. Coming to the writ appeal, the counsel for the appellant conceded that as the appellant being a retired employee, the provisions of Rule 1 (2) of the Civil Service (Medical Attendance) Rules, 1944 do not apply to the appellant and both the counsel agreed that the appellant can pursue his remedies directly with the Pensioners Cell in D.G.H.S. for reimbursement of his medical bills. In that view of the matter, the writ appeal cannot be entertained. Accordingly, the Writ Petitions are allowed and the Writ Appeal is dismissed. No order as to costs. __________________ A. GOPAL REDDY, J _________________________________ SAMUDRALA GOVINDARAJULU,J Date:15-12-2009 Kmr/Tsr [1] AIR 1998 SC 707 [2] ATJ 2005(1) 31 [3] 1993 25 ATC 671 [4] AIR 1977 SC 2149 [5] AIR 1966 SC 334 [6] AIR 1962 SC 1210 [7] AIR 1973 SC 964 [8] 1998 SC 1703