# CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS AND ORS v. UNION OF INDIA AND ORS

- **Citation:** [2006] Supp. 4 S.C.R. 872
- **Court:** Supreme Court of India
- **Decided:** 2006-08-22
- **Bench:** Y.K. SABHARWAl, K.G. Balakrjshnan, S.H. Kapadia, C.K. Thakkerand P.K. Balasubramanyan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/confederation-of-ex-servicemen-associations-and-ors-v-union-of-india-and-ors-21841
- **Pages:** 41

## Headnote

Constitution of India, 1950:
C
Articles 14 and 21-Full and free medical aid for in-service defence
personnel/Government employees-Not extended to ex-service defence
personnel-Reasonableness of classification--Held: reasonable since two
categories of employees form different class and cannot be said to be similarly
situated-There is, no violation of Article 14 if they are treated differentlyD Likewise, classification between defence personnel and other than defence
personnel is also reasonable and valid-Doctrine of legitimate expectation
also not applicable as there was no withdrawal or revocation of medical
services of ex--servicemen.
Articles 14 and 21-Writ filed by ex-servicemen for direction to
E Government to provide free and full medicare to them, their families/
dependents-Government introduced Ex-servicemen Contributory Health
Scheme, 2002 (ECHS)-Challenge to--On the ground that right to medical
aid is fundamental right hence asking ex-servicemen to pay contribution
amount for getting medical benefits is violative of such rights-Held: Asking
ex-servicemen to pay contribution neither violates Part Ill nor Part IV of the
F Constitution--Getting free and full medical facilities is not a part of
fundamental right of ex-servicemen--Ex-servicemen who are getting pension
may become. members of ECHS by making 'one time contribution' of
reasonable amount (ranging from Rs. l,8001- to Rs.18,000/-)-This cannot be
held illegal or unreasonable-However, defence personnel during their youth
G had put their lives to high risk and improbabilities- They, therefore, are
entitled to privileged treatment-As a mark of respect and gratitude, they
must be provided medical services after retirement-On facts, respondentGovernment directed either to waive the amount of contribution or to pay
such amount on behalf of ex-servicemen who intend to avail medical benefits
under the said scheme.
H
872
r
,,
CONFEDERATION OF EX-SERVICEMEN ASSOCJA TJONSv. U.0.1.
873
Article I 4-Test of permissible classification-Discussed.
Article 2 I-Free and full medical facilities-Held: ls not a fundamental
right guaranteed by Part JJJ or Part JV of the Constitution.
Article 32-Public interest litigation-Writ Petition seeking direction
A
to the Government to recognize the right of full and free medicare of ex- B
servicemen and their families-Maintainability of, when filed by Confederation
of individually registered Associations of ex-servicemen-Held,
Maintainable-Petitioner-Confederation representing those Associations,
which is also registered, has locus standi to file the petition-Moreso, since
larger public issue and cause is involved in the Writ petition.
Doctrines:
Doctrine of 'legitimate expectation'-Applicability of
c
The Petitioner-Association, a Confederation of five Ex-servicemen
Associations filed PIL under Article 32 of the Constitution before this Court D
for an appropriate writ directing the Respondent-Union of India to take
necessary steps to ensure that full and free medicare is provided to ex-service
defence personnel, their families and dependents on par with in-service defence
personnel and to extend such medicare for all diseases including serious and
terminal diseases, even if treatment for those diseases is not available at E
Military Hospitals. The grievance of petitioner is that although they have a
valuable right of full and free medicare, which is a fundamental right
guaranteed by Part III as also covered by Directive Principles in Part IV of
the Constitution, no concrete and effective steps had been taken by the
respondents which constrained them to approach this Court; that such
facilities are provided to Government employees and retired employees and F
therefore refusal to extend similar medical benefits to ex-defence personnel
is arbitrary, discriminatory, unreasonable and violative of A11icles 14, 16, 19
and 21 of the Constitution.
The Respondent contended that the Petitioner-Associations were not
registered associations and therefore had

## Text

_Characters 0–39,931 of 98,659. This is a partial read: ask again with offset=39931 for what follows._

A
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS AND ORS.
v
UNION OF INDIA AND ORS.
AUGUST 22, 2006
B
[Y.K. SABHARWAl, CJ., K.G. BALAKRJSHNAN, S.H. KAPADIA, C.K.
THAKKERAND P.K. BALASUBRAMANYAN, JJ.J
Constitution of India, 1950:
C
Articles 14 and 21-Full and free medical aid for in-service defence
personnel/Government employees-Not extended to ex-service defence
personnel-Reasonableness of classification--Held: reasonable since two
categories of employees form different class and cannot be said to be similarly
situated-There is, no violation of Article 14 if they are treated differentlyD Likewise, classification between defence personnel and other than defence
personnel is also reasonable and valid-Doctrine of legitimate expectation
also not applicable as there was no withdrawal or revocation of medical
services of ex--servicemen.
Articles 14 and 21-Writ filed by ex-servicemen for direction to
E Government to provide free and full medicare to them, their families/
dependents-Government introduced Ex-servicemen Contributory Health
Scheme, 2002 (ECHS)-Challenge to--On the ground that right to medical
aid is fundamental right hence asking ex-servicemen to pay contribution
amount for getting medical benefits is violative of such rights-Held: Asking
ex-servicemen to pay contribution neither violates Part Ill nor Part IV of the
F Constitution--Getting free and full medical facilities is not a part of
fundamental right of ex-servicemen--Ex-servicemen who are getting pension
may become. members of ECHS by making 'one time contribution' of
reasonable amount (ranging from Rs. l,8001- to Rs.18,000/-)-This cannot be
held illegal or unreasonable-However, defence personnel during their youth
G had put their lives to high risk and improbabilities- They, therefore, are
entitled to privileged treatment-As a mark of respect and gratitude, they
must be provided medical services after retirement-On facts, respondentGovernment directed either to waive the amount of contribution or to pay
such amount on behalf of ex-servicemen who intend to avail medical benefits
under the said scheme.
H
872
r
,,
CONFEDERATION OF EX-SERVICEMEN ASSOCJA TJONSv. U.0.1.
873
Article I 4-Test of permissible classification-Discussed.
Article 2 I-Free and full medical facilities-Held: ls not a fundamental
right guaranteed by Part JJJ or Part JV of the Constitution.
Article 32-Public interest litigation-Writ Petition seeking direction
A
to the Government to recognize the right of full and free medicare of ex- B
servicemen and their families-Maintainability of, when filed by Confederation
of individually registered Associations of ex-servicemen-Held,
Maintainable-Petitioner-Confederation representing those Associations,
which is also registered, has locus standi to file the petition-Moreso, since
larger public issue and cause is involved in the Writ petition.
Doctrines:
Doctrine of 'legitimate expectation'-Applicability of
c
The Petitioner-Association, a Confederation of five Ex-servicemen
Associations filed PIL under Article 32 of the Constitution before this Court D
for an appropriate writ directing the Respondent-Union of India to take
necessary steps to ensure that full and free medicare is provided to ex-service
defence personnel, their families and dependents on par with in-service defence
personnel and to extend such medicare for all diseases including serious and
terminal diseases, even if treatment for those diseases is not available at E
Military Hospitals. The grievance of petitioner is that although they have a
valuable right of full and free medicare, which is a fundamental right
guaranteed by Part III as also covered by Directive Principles in Part IV of
the Constitution, no concrete and effective steps had been taken by the
respondents which constrained them to approach this Court; that such
facilities are provided to Government employees and retired employees and F
therefore refusal to extend similar medical benefits to ex-defence personnel
is arbitrary, discriminatory, unreasonable and violative of A11icles 14, 16, 19
and 21 of the Constitution.
The Respondent contended that the Petitioner-Associations were not
registered associations and therefore had no locus standi to file the Writ G
Petition. On merits, it contended that full and free medical aid for exservicemen cannot be claimed as a matter of right. It has never been claimed
for more than fifty years of independence. Ex-servicemen and their dependents
are entitled to medical treatment in Military Hospitals- They are also given
financial assistance from the Group Insurance Scheme and from the Armed H
874
SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.
A Forces Flag Day Fund for treatment outside Military hospitals. On the
recommendations of Fifth Pay Commission, the Government had sanctioned
fixed medical allowance of Rs. I 00 per month to those ex-servicemen and their
families who reside in the areas where facilities of Armed Forces hospitals/
clinics are not available. As to discrimination, it contended that the case of
B
ex-servicemen cannot be compared with retired Civilian Central Government
employees inasmuch as medical facilities under Central Government Health
Scheme are contributory i.e., a retired Central Government servant who is a
member of CGHS before retirement has option to continue to be covered by
the said scheme. The petitioners, therefore, cannot claim similar benefits
since they are not similarly situated. Regarding in-service defence personnel,
C it was stated that the case of the petitioners cannot be compared with in-service
defence personnel as they are different, distinct, independent and form
different class.
During the pendency of the writ petition, the Government of India had
introduced a scheme known as "Ex-Servicemen Contributory Health Scheme"
D (ECHS) partly taking care of grievances raised by the petitioner. The scheme
is a contributory scheme for ex-servicemen and extends certain benefits on
payment of contribution. The Petitioner-Association has raised question that
to get free and full medical aid is their fundamental right and is corresponding
duty of the Government hence they can neither be denied that right nor be
E asked to pay contribution amount for getting medical benefits.
Partly allowing the Writ Petition, the Court
HELD: I. All Associations, which constitute Confederation, are
individually registered Associations of ex-servicemen. The petitionerF Confederation representing those Associations, which is also registered, can
certainly approach this Court by invoking the provisions of Part Ill of the
Constitution. Moreover, larger public issue and cause is involved in the Writ
Petition. Therefore, the petitioner-Confederation has locus standi to file the
petition. However, maintainability of petiti:m and justiciability of issues raised
therein are two different, distinct and independent matters and one cannot be
G mixed or inter-linked with the other. (888-D-EJ
H
Consumer Education and Research Centre and Ors. v. Union of India
and Ors., (1995] 3 SCC 42; Pradip Chandra Parija & Ors. v. Pramod
Chandra Patnaik & Urs. (2002) I SCC I and D.S. Nakara v. Union of India,
(1983) I sec 305, referred to.
•
CONFEDERATION OF EX-SERVICEMEN ASSOCIA TIONSv. U.0.1.
875
,..
2.1. Article 14 guarantees equality before the law and confers equal A
'
protection of laws. It clearly prohibits the State from denying persons or class
of persons equal treatment provided they are equals and are similarly situated.
It thus prohibits discrimination or class legislation. It, however, does not
prohibit classification if otherwise it is legal, valid and reasonable.
1889-B-CI B
State of West Bengal v. Anwar Ali Sarkar & Anr., (19521 SCR 284;
Budhan Chaudhry v. State of Bihar, 119551 I SCR 1045; Sidi Supply Co. v.
Union of India & Ors., 11956) SCR 267; Ram Krishna Dalmia v. Justice
Tendolkar, [1959) SCR 279; VC. Shukla v. State (Delhi Administration),
11980) Supp. SCC 249; Special Courts Bill, Re, (197912 SCR 476; R.K. Garg
v. Union of India, [1981) 4 SCC 675; State of A.P. & Ors. v. Nallamilli Rami C
Reddi & Ors., (2001] 7 SCC 708 and MP. Rural Agriculture Extension Officers
Association v. State of MP. & Anr., (2004) 4 SCC 646, referred to.
2.2. Every classification to be legal, valid and permissible, must fulfil
the twin-test, namely: (i) the classification must be founded on an intelligible
differentia which must distinguish persons or things that are grouped together D
from others leaving out or left out; and (ii) such a differentia must have
rational nexus to the object sought to be achieved by the statute or legislation
in question. (891-B-D]
2.3. Classification between in-service employees and retirees is legal,
valid and reasonable classification and if certain benefits are provided to in- E
service employees and those benefits have not been extended to retired
employees, there is no discrimination hit by Article 14 of the Constitution.
Two categories of employees are different. They form different classes and
cannot·be said to be similarly situated. There is, therefore, no violation of
Article 14 if they are treated differently. Likewise, a classificatio!I between p
defence personnel and other than defence personnel is also reasonable and
valid classification. (891-D-FI
2.4. For medical facilities provided to retired civil servants, there is also
a scheme known as the Central Government Health Scheme (CGHS), which
is again contributory. Retired Central Government Servants who are members G
of the scheme are covered by the said scheme and they are provided medical
services on payment of specified amount under the scheme. (891-FI
3.1. The doctrine of 'legitimate expectation' is a 'latest recruit' to a
long list of concepts fashioned by Courts for review of administrative actions.
Under the said doctrine, a person may have reasonable or legitimate H
876
SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.
A expectation of being treated in a certain way by an administrative authority
even though he has no right in law to receive the benefit. In such situation, if
a decision is taken by an administrative authority adversely affecting his
interests, he may have justifiable grievance in the light of the fact of continuous
receipt of the benefit, legitimate expectation to receive the benefit or privilege
B which he has enjoyed all throughout. Such expectation may arise either from
the express promise or from consistent practice which the applicant may
reasonably expect to continue. 1891-H; 892-A-C]
3.2. The doctrine of legitimate expectation, cannot be invoked by the
petitioner. It is not the case of the petitioners that certain medical facilities
C which were enjoyed by them in the past have been withdrawn or revoked. On
the contrary, they have admitted that after independence, because of several
representations made by them and various efforts, suggestions and
recommendations by different Committees and Commissions, more and more
medical facilities were provided but they were not enough. It was also their
case that in the last few years, situation regarding infrastructure and staff
D has been improved. They have, therefore, prayed that medical facilities which
were not proYided in past may also be provided now to retired defence personnel.
Similarly, medical facilities should also be extended for serious and terminal
diseases. 1892-G-H; 893-A-BI
Schmidt v. Secretary of Stale, 11969) 1 All ER 904 and Attorney General
E of Hong Kong v. Ng Yuen Shiu, (1983) 2 All ER 346, referred to.
4. In the absence of legislative provisions or administrative instructions
governing the field, this court may, in appropriate cases, issue necessary
directions. In the instant case, however, a scheme providing medical facilities
to ex-servicemen has been framed. It has been decided by the Central
F Government to extend medical facilities to retired defence personnel on the
basis of 'one time contribution' which is legal, proper and reasonable.
(893-D-E]
Delhi Judicial Service Association v. State of Gujarat, 119911 3 SCR
936; D.K. Basu v. State of West Bengal, [19971 1SCC416 and Visakha v. State
G ofRajasthan, 1199716 sec 241, held inapplicable.
5.1. So far as the services provided by the defence personnel is
concerned, there can be no two opinions that they have rendered extremely
useful and indispensable services which can neither be ignored nor underestimated. The petitioners have rightly stated that they have served in the
H Army, Air Force and Navy of the Union of India during cream period of youth
.,
·~
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1.
877
putting their lives to high risk and improbabilities. As a mark of respect and A
gratitude, therefore, they must be provided medical services after retirement.
It is indeed true that men and women in uniform are the pride of the nation
and protectors of the country. It is because of their eternal vigil that ordinary
citizens are able to sleep peacefully every night, for it is these men and women
guarding the frontiers of our nation that makes our interiors safe. They,
therefore, are entitled to privileged treatment.1893-G-HI
B
5.2. The contributory scheme of 2002 substantially covers extensive
medical facilities to be provided to ex-servicemen. The scheme would cater
for medicare to the ex-servicemen by establishing new Polyclinics and
Augmented Armed Forces Clinics at 227 stations spread across the country. C
It also provides for reimbursement of cost of medicines/ drugs/consumables
and for financial outlay. It states that the service head quarters would ensure
that allocations made for revenue expenditure and reimbursement is fully
utilized on yearly basis. Under the scheme, now in vogue, all ex-servicemen
are entitled to medical treatment provided they become members of the said
scheme and pay requisite contribution. This would apply only to those defence D
personnel who retired prior to 1st January, 1996 since officials who have
retired after that date or are still in service are governed by the scheme and
are paying requisite amount of contribution. 1902-C, G-H; 903-C-DI
CESC Ltd. v. Subhash Chandra Bose, 11992) 1 SCC 441; Bandhua
Mukti Morcha v. Union of India, 11984) 3 SCC 161; Francis Coralie Mullin E
v. Administrator, Union Territory of Delhi, 11981) 1 SCC 608; Paschim Banga
Khet Mazdoor Samity v. State of West Bengal, 11996) 4 SCC 37; Khatri (II) v.
State of Bihar, 11981) 1 SCC 627; Vincent Panikurlangara v. Union of India,
(1987) 2 SCC 165 and National Textile Workers' Union v. P.R. Ramakrishnan,
fl983J 1 sec 228, referred to.
F
Munn v. Illinois, (1876) 94 US 113, referred to.
6. Right to life guaranteed under Article 21 of the Constitution embraces
within its sweep not only physical existence but the quality of life. If any
statutory provision runs counter to such a right, it must be held G
unconstitutional and ultra vires Part III of the Constitution. State does not
have unlimited resources to spend on any of its projects. The provisions
relating to supply of medical facilities to its citizens is not an exception to
the said rule. Therefore, such facilities must necessarily be made limited to
the extent finances permit. No right can be absolute in a Welfare State. An
individual right has to be subservient to the right of public at large. Though H
878
SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.
A the right to medical aid is a fundamental right of all citizens including exservicemen guaranteed by Article 21 of the Constitution, framing of scheme
for ex-servicemen and asking them to pay 'one time contribution' neither
violates Part III nor it is inconsistent with Part IV of the Constitution. Exservicemen who are getting pension have been asked to become members of
ECHS by making 'one time contribution' of reasonable amount (ranging from
B Rs.1,800/- to Rs.18,000/·). This cannot be held illegal, unlawful, arbitrary or
otherwise unreasonable. (907-F; 909-C; D-FI
Kharak Singh v. State of UP., (196411 SCR 332; Prithi Pal Singh v.
Union of India, ( 1982(3 SCC 140; A.K. Roy v. Union of India, (1'>8211 SCC
C 271; Olga Tellis v. Bombay Municipal Corporation, 1198513 SCC 545; State
of H.P. v. Urned Ram Sharma, (198612 SCC 63; Prabhakaran v. State a/Tamil
Nadu, 119871 4 SCC 238; A.R. Antulay v. R.S. Nayak, (19881 2 SCC 602;
Vikram Deo Singh v. State of Bihar, ( 1988( Supp SCC 734; Parmanand Katara
v. Union of India. (1989( 4 SCC 286; Kishan Pattnayak v. State of Orissa,
(19891 Supp I SCC 258; Shantistar Builders v. Narayan, (199011SCC520;
0 Chhetriya Pradushan Mukti Sangharsh Samiti v. State of UP .. (199014 SCC
449; Charan Lal Sahu v. Union of India, (1990( 1sec613; Delhi Transport
Corporation v. Delhi Transport Corporation Mazdoor Congress, 119911 Supp
I sec 600 (735); Kapila Hingorani v. State of Bihar, (20031 6 SCC I; District
Registrar & Collector, Hyderabad v. Canara Bank, 120051 I SCC 496 and
State of Pufl}ab v. Ram lubhaya Bagga (1998) 4 SCC ll 7, referred to.
E
7. The policy decision in formulating Contributory Scheme for exservicemen is in accordance with the provisions of the Constitution and also
in consonance with the law laid down by this Court. Getting free and full
medical facilities is not a. part of fundamental right of ex-servicemen. However,
this Court is not unmindful or oblivious of exemplary and extremely useful
F services rendered by defence personnel. It is equally conscious of the fact
that the safety, security and comfort enjoyed by the countrymen depend largely
on dedication and commitment of our soldiers, sailors and airmen. They are
";
exposed to harsh terrain and discharge their duties in hostile conditions of
life. They are unable to come in contract with their family members, kiths
G and kins or rest of the world. They are not in a position to enjoy even usual
and day-to-day comforts and amenities of life available to ordinary men and
women. At times, they are not able to communicate to their friends and
relatives. It is also not in dispute that the question relates to a particular class
of persons which is a 'diminished category', retired prior to January I, 1996.
H
(909-G-H; 910-A-CJ
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER,J.] 879
8. Keeping in view totality of facts and circumstances, the ends of justice A
would be met if the Ex-servicemen Contributory Health Scheme, 2002 (ECHS)
is held to be legal, valid, intra vires and constitutional but direction is issued
to the respondent-Government either to waive the amount of contribution or
to pay such amount on behalf those ex-servicemen who retired prior to January
1, 1996 and who intend to avail medical facilities and benefits under the said
scheme by exercising option by becoming members of ECHS. In other words,
it is open to ex-defence personnel, who retired prior to January 1, 1996 to
become members of ECHS and to claim medical facilities and benefits under
the said scheme without payment of contribution amount. They are, however,
not entitled to claim medical allowance in future. (911-H; 912-A-B)
B
c
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 210of1999.
(Under Article 32 of the Constitution of India.)
K.S. Bhati, Aishwarya Bhati and Jagdev Singh Manhas for the Petitioners.
R.P. Mehrotra, Anil Katiyar and Garvesh Kabra for (Arvind Kumar D
Sharma) (N.P.) for the Respondents.
The Judgment of the Court was delivered by
C.K. THAKKER, J. This petition under Article 32 of the Constitution
is filed as Public Interest Litigation (PIL) by petitioner-Confederation of ex- E
serviceman Associations for an appropriate writ directing the respondentUnion of India to recognize the right of full antl free medicare of ex-servicemen,
their families and dependents treating such right as one of the fundamental
rights guaranteed under the Constitution of India. A prayer is also made to
direct the respondents to take necessary steps to ensure that full and free F
medicare is provided to ex-servicemen, their families and dependents on par
with in-service defence personnel. A further prayer is also made to extend
such medicare for all diseases including serious and terminal diseases, even
if treatment for those diseases is not available at Military Hospitals.
The case of the petitioner is that there are certain ex-servicemen G
Associations which have formed a Confederation in furtherance of common
cause for welfare of ex-defence personnel.
They are;
(i)
Air Force Association;
H
880
SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.
A
(ii)
India Ex-services League;
(iii) Naval Foundation;
B
(iv) Disabled War Veterans (India); and
(v)
War Widows Association.
Aims and objects of the Confederation have been set out in the
Memorandum of Understanding (MoU) produced at Annexure P-1. According
to the petitioner, there are approximately 15 lakhs ex-servicemen in the country
alongwith 45 lakhs dependents and family members. The petitioner has no
information regarding medical facilities provided to ex-servicemen prior to the
C Second World War (1939-44). After the Second World War, however, certain
information is available. A book edited by Mr. Bishweshwar Dass was
published titled "Combined Inter-services : Historical Section : India and
Pakistan", wherein it has been stated that the Government had accepted full
re3ponsibility for medicare of disabled ex-servicemen as also for their
rehabilitation.
D
Disabilities, which were categorized, were as follows:
(0
Loss of limb or use of limb;
(ii)
General medical and surgical disability;
E
(iii) Loss of speech;
(iv) Deafness;
F
(v) Blindness and material impairment of vision;
(vi) Pulmonary Tuberculosis;
(vii) Mental diseases.
The petitioner further stated that in 1962, more medical facilities were
provided to ex-army personnel. In 1983, regulations were framed known as
Regulations for Medical Services of Armed Forces which restricted entitlement
to disability for which pension had been granted. No treatment was authorized
G for serious diseases, like pulmonary tuberculosis, leprosy and mental diseases
even if such diseases were attributable to Army Services if treatment of such
diseases was not ordinarily available from service sources.
According to the petitioner, various Committees were constituted to
H examine the issue as to availability of medical facilities to members of Armed
y
...
'
. CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.O.!. [C.K. THAKKER, J.) 881
Forces. In I 984, a High Level Committee headed by the then Rajya Raksha A
Mantri Shri K.P. Singh Deo was set up which conducted thorough study of
the problems of ex-defence personnel for the first time. The Committee
recommended enhancement of facilities and improvement of medical services
to ex-servicemen. Between 1986 and I 990, several steps had been taken in the
direction of extending more benefits to ex-servicemen through various
committees and commissions, such as, Dharni Committee (1986), COM Study B
Report (I 987), Report on Army Logistics Philosophy (I 987), Verma Committee
(1988), Narsimhan Committee (1990), Vijay Singh Committee (1990), etc. In
1993, Lt. Gen. N. Foley Committee again examined the problem ofmedicare to
ex-servicemen. It noted with concern the manner in which ex-servicemen had
been treated in providing medical facilities which were shocking. It observed C
that ex-servicemen were virtually neglected by the Government. It felt that
there was a feeling of frustration in ex-servicemen. It, therefore, suggested
that there should be no discrimination of treatment between in-service personnel
and ex-servicemen. The Committee made certain recommendations both on
long term basis as well as on short term basis. Again, the Fifth Pay Commission
examined the medical and other facilities to pensioners of the Central D
Government employees and also to ex-servicemen. The Commission noted the
expenditure incurred on various categories of Central Government employees,
and after examining the entire issue, recommended that the Ministry of Defence
should embark at once for expansion of medical facilities to ex-servicemen. It
suggested creation of ex-servicemen wards in Civil Hospitals in liaison with E
State Governments. It also recommended Ministry of Health and Family Welfare
to set up Veteran's Hospitals where a concentration of civil and military
pensioners existed. In addition, it proposed a medical allowance of Rs. I 00 per
month for ex-servicemen living in rural areas who could not avail themselves
of military/civil hospital facilities.
F
According to the petitioner, the Pay Commission missed the basic
thrust of the requirement of providing free and full medicare to ex-servicemen.
Since the Regulations relating to medical services to Armed Forces expressly
excluded the treatment at Government hospitals to ex-servicemen for serious
diseases like pulmonary tuberculosis, leprosy and mental diseases, any amount G
of facilities would not be sufficient to ex-servicemen suffering from such
diseases. The Regulations were also silent about modem serious and terminal
diseases like AIDS, Cancer, etc. and no provision was made for expenses on
essential treatments like bypass surgery, laparoscopy, endoscopy, etc.
The petitioner has also stated that after 1997, various efforts were made H
882
SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.
A b) the member-Associations to get more benefits to ex-servicemen. On June
12, 1997, Air Marshal D.S. Sabhikhi, Senior Vice President of Air Force
Association submitted a detailed representation to the Defence Ministry
requesting to take action on war footing for setting up Veteran's Hospitals,
augmentation of Special Medical Inspection Rooms (MIRs), Dental Centres,
etc., for ex-servicemen. Brig. Dal Singh (Retd.), President of Indian Ex-services
B League also wrote a letter to the Defence Secretary requesting him to intimate
the actions taken by the authorities on various judgments of this Court.
Similar representation was made by Vice Admiral S.K. Chand (Retd.), President
of Navy Foundation, Delhi. Attention of the Government was invited by
political leaders and reference was made to letters ofShri B.K. Gadhvi, Member
C of Lok Sabha to the Defence Minister as also by Shri Jaswant Singh, another
M.P. The petitioner has referred to letters by Air Chief Marshal S.K. Kaul
(Retd.) in 1997-98 and by Air Marshal D.S. Sabhikhi, Senior Vice President of
Air Force Association.
The grievance of the petitioner is that though several attempts had
D been made by the Associations, the Government of India had never taken the
matter seriously as regards the medical services to be provided to exservicemen. Though they have a valuable right of full and free medicare,
which is a fundamental right, no concrete and effective steps had been taken
by the respondents which constrained them to approach this Court by invoking
E Article 32 of the Constitution. According to them, keeping in view the services
rendered by ex-defence personnel and the diseases sustained by them, they
are entitled to necessary medical facilities. It was also their case that free and
full medical facilities is part and parcel of their fundamental rights guaranteed
by Part III of the Constitution as also covered by Directive Principles in Part
IV of the Constitution. In several cases, this Court has held that such facilities
F must be provided to Government employees, past and present. According to
the petitioner, such facilities are provided to Government employees and also
to ex-servicemen. Refusal to extend similar medical benefits to ex-defence
personnel is thus arbitrary, discriminatory, unreasonable and violative of
Articles 14, 16, 19 and 21 of the Constitution.
G
The petition came up for preliminary hearing before a two Judge Bench
on May 10, 1999 and the following order was passed:
"Issue Rule.
Reliance is placed upon paragraph 25 of the decision of a three Judge
H
Bench in Consumer Educalion and Research Centre and Ors. v.
,
: ,.
.•
'
...
... -
.........
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER, J.] 883
Union of India and Ors., [ 1995] 3 sec 42. Since we are, prima facie, A
disinclined to accept the correctness of the broad observations in that
paragraph, the matter shall be placed before the Bench of five learned
Judges."
From the above order, it is clear that the two Judge Bench had some
doubt about the correctness of wider observations in Consumer Education B
& Research Centre. The matter was, therefore, ordered to be placed before
a Bench of five Judges. By an order dated July 20, 2004, however, a three
Judge Bench, relying on a decision rendered by the Constitution Bench of
this Court in Pradip Chandra Parija & Ors. v. Pramod Chandra Patnaik &
Ors., [2002] l SCC 1 observed that initially the matter was required to be heard c
by a Bench of three Judges. Accordingly, the matter was. ordered to be set
down for hearing before a three-Judge Bench. On November 22, 2005, a three
Judge Bench perused the earlier orders, heard the learned counsel for the
parties for some time and the issue involved and was satisfied that the writ
petition was required to be heard by a Bench of five Judges. Accordingly, an
order was passed directing the Registry to place the papers before Hon'ble D
the Chief Justice for necessary action. That is how, the matter is placed for
hearing before us.
A counter affidavit by Mr. V.K. Jain, Under Secretary, Ministry of Defence
on behalf of Union of India was filed on January 24, 2002, raising inter alia,
preliminary objection as to maintainability of writ petition as also objections E
on merits. A technical objection was raised by the respondents that the
petition was not maintainable as the petitioner-Associations were not
registered associations and, therefore, had no locus standi. On Merits, it was
submitted that ex-servicemen were provided Assured In-patient and Outpatient Treatment as specified in the Regulations of 1983 within the available F
resources of the State. According to the Union, full and free medical aid for
ex-servicemen cannot be claimed as a matter of right. It has never been
claimed for more than fifty years of independence. Ex-servicemen and their
dependents are entitled to medical treatment in Military Hospitals. They are
also given financial assistance from the Group Insurance Scheme and from the
Armed Forces Flag Day Fund for treatment outside Military hospitals. On the G
recommendations of Fifth Pay Commission, the Government had sanctioned
fixed medical allowance of Rs. I 00 per month to those ex-servicemen and their
families who reside in the areas where facilities of Armed Forces hospitals/
clinics are not available. Over and above those facilities, other facilities were
also provided, such as Mobile Medical Teams, Medical Vans, Army Group H
884
SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.
A Insurance Medical Benefit Scheme, Army Dialysis Centres, etc. It was then
stated that the Government had extended certain medical amenities to exservicemen and their dependents within the available sources. Ex-servicemen
and their family members are given free out-patient treatment in nearest
Military Hospitals and are also given medicines. Regarding Military hospitals,
it was stated by the deponent that such hospitals are essentially meant for
B treatment of in-service defence personnel for whom it is a service requirement
to ensure defence preparedness. Ex-servicemen are provided in-patient
treatment in Military Hospitals, subject to the availability of beds within the
authorized strength and without detriment to the needs of in-service defence
personnel. It was, however, conceded that the scheme did not cover treatment
C for pulmonary tuberculosis, leprosy, mental diseases or malignant diseases.
As to discrimination, it was stated that the case of ex-servicemen cannot
be compared with retired Civilian Central Government employees inasmuch as
medical facilities under Central Government Health Scheme ('CGHS' for short)
are contributory i.e., a retired Central Government servant who is a member
D of CGHS before retirement has option to continue to be covered by the said
scheme. The petitioners, therefore, cannot claim similar benefits since they are
not similarly situated. Regarding in-service defence personnel, it was stated
that the case of the petitioners cannot be compared with in-service defence
personnel as they are different, distinct, independent and form different class.
E It was, therefore, submitted that the grievance of the petitioner is not well
founded and they are not entitled to the reliefs claimed.
A rejoinder affidavit on behalf of the petitioner was filed to the affidavit
in reply controverting the facts stated and averments made in the counter
affidavit, reiterating the assertions in the petition. In addition, it was stated
F that on September 13, 1999, Assistant ChiefofPersonnel (P&C) of the Indian
Navy had informed the then President of the Confederation that the Committee
had been constituted under the direction of the Defence Minister to look into
the problems of medicare of ex-servicemen. Similar information was also
communicated by the Under Secretary of Ministry of Defence vide letter
dated September 20, 1999 and yet nothing was stated on that point by the
G Union of India in the counter affidavit already filed.
H
On July 20, 2004, this Court granted I.As. of All India Defence Services
Advocates Association and All India Ex-Services Welfare Association seeking
impleadment to the limited extent of addressing the court to raise such points
not covered by the submissions of the learned counsel for the petitioner.
,
•
'
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER, l.) 885
It was also stated at the Bar that during the pendency of the writ A
petition, the Government of India had introduced a scheme known as "ExServicemen Contributory Health Scheme" (ECHS) partly taking care of
grievances raised by the petitioner and intervenors. The respondents sought
time to place the scheme on record within four weeks. Accordingly, by an
additional affidavit dated October 4, 2004, ECHS has been placed on record
by the respondents. The scheme is a contributory scheme for ex-servicemen B
and extends certain benefits to ex-servicemen on payment of contribution .
We have heard learned counsel for the petitioner, intervenors and for
the respondent-authorities.
The learned counsel for the petitioner and intervenors submitted that C
considering the hard and arduous nature of work performed by defence
personnel and taking into account the exigencies of service, it was obligatory
on the respondents to provide free and full medical facilities to them even
after retirement. It was submitted that such facilities are provided to defence
personnel who are in service. They are also extended to civilians, even after D
retirement. In such matters, expenses would be immaterial. But even if the said
fact is relevant and considered material, it is a negligible amount compared
to the services rendered by them. The impugned action, therefore, is arbitrary,
discriminatory, unreasonable and violative of fundamental rights conferred by
the Constitution. It was also urged that several Committees, Commissions and
Expert Bodies considered the plight of ex-servicemen. Various suggestions E
were made and recommendations were forwarded to the respondents but no
adequate steps have been taken by them. The doctrine of 'legitimate
expectation' was also pressed in service contending that most of the defence
personnel had to retire at a·premature age either because of injuries sustained
or occupational diseases suffered by them. It is, therefore, the right of ex- F
servicemen to get adequate free and full medical treatment. Apart from
fundamental rights guaranteed by Part III of the Constitution, it is the duty
of the respondents to implement Directive Principles of State Policy under
Part IV of the Constitution.
The counsel submitted that serious and terminal diseases cannot be G
excluded from the category of medical services to be provided to ex-servicemen.
It was stated that in past, there were no sufficient number of Military hospitals/
clinics. Due to inadequate infrastructure, paucity of staff, availability of
sufficient means and other considerations, it was not possible for the
respondents to provide medical facilities for serious diseases but in 21st H
886
SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.
A century, when Medical Science has much developed and huge infrastructure
is available, there is no earthly reason to deprive ex-servicemen from getting
medical treatment for those diseases.
It was finally submitted that no doubt, recently a scheme has been
framed under which medical facilities have been ensured to ex-servicemen.
B But they are required to pay contribution since the scheme is 'contributory
health scheme'. To that extent, therefore, the scheme is objectionable and is
violative of fundamental rights of ex-servicemen. It is also inconsistent with
and contrary to various decisions of this Court wherein it has been held that
....
to get free medical service is a fundamental right of citizens. On all these
' --
c grounds, it was submitted that the petition deserves to be allowed by issuing
appropriate directions to the respondents to provide full and free medical
facilities to ex defence personnel and their family members.
The learned counsel for the Union of India, on the other hand, submitted
that the action of the Government cannot be held arbitrary, unlawful or
D otherwise unreasonable. He conceded that valuable services have been
rendered by retired army-men when they were in service. But submitted that
the State after taking into account all relevant aspects, formulated a policy for
providing medical facilities to its employees as also to ex-employees. According
,.
to the counsel, defence personnel and civil personnel cannot be compared as
E
they belong to different class. Article 14, therefore, has no application. Likewise,
defence personnel in-service and defence personnel out of service, i.e. who
have retired, cannot be placed in the same category and if different standards
are fixed for providing medical facilities to defence personnel in service on
one hand and to retired defence personnel on the other, it cannot be said that
the State has acted arbitrarily or practised discrimination between the two
F classes who are not similar and do not stand on the same footing. It was
submitted by the respondents that free medical service to all its employees
in- service or out-of service is never held to be a fundamental right guaranteed
by the Constitution and even if there are some observations to that effect,
they are either 'obiter dicta' or 'passing observations' and do not lay down
correct law. Every State has limited financial means and resources. And
G keeping in view financial capacity and available means, it has to undertake
its obligations of providing social services including medical faciiities to its
-...
employees in-service or retired. So far as ex-servicemen are concerned, the
counsel submitted that recommendations and suggestions of various
Committees were considered by the Union of India and more and more
H benefits had been extended from time to time. Regarding medical facilities in
-
., -
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.OI. [CK THAKKER, J.] 887
serious and terminal diseases, it was submitted that in past, such facilities A
were either not available at Military hospitals/clinics or there were no sufficient
number of hospitals/clinics and hence they could not be provided to exservicemen. The position was thereafter substantially changed. In several
hospitals/clinics now such facilities are available. It was also stated that
financial assistance is being given to ex-servicemen in certain cases. In 2002,
the Government has prepared ECHS for full medical services. True it is that B
the scheme is contributory.