# THE SECRETARY, MINISTRY OF HEALTH & FAMILY WELFARE, GOVERNMENT OF MAHARASHTRA v. S.C. MALTE & ORS

- **Citation:** [2012] 13 S.C.R. 230
- **Court:** Supreme Court of India
- **Decided:** 2012-12-13
- **Case number:** Civil Appea! Nos. 9020-9021 of 2012
- **Bench:** A.K. Patnaik, Swatanter Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-secretary-ministry-of-health-family-welfare-government-of-maharashtra-v-s-c-28134
- **Pages:** 35

## Headnote

Judiciary - Medical facilities for retired High Court
C Judges and their dependent family members - Statutory
power of the State Government - Jurisdiction of the High
Court to direct the Stat4~ Government to frame particular rule
regarding medical facilities for the retired High Court Judges
- Difference of opinion - Matter referred to larger Bench -
ID High Court Judges (Salaries and Conditions of Service) Act,
1954 - s.230 - Maharashtra Retired High Court Judges
(Facilities for Medical Treatment) Rules, 2006 - r.2(a) -
Constitution of India, 1950 - Articles 32, 136 and 226.
Some retired Judges of the Bombay High Court
EE
moved a representation to the Chief Justice of the
Bombay High Court mentioning the difficulties faced by
them in getting medical facilities under the Central
Government Health Scheme (CGHS) and difficulties in
p respect of reimbursement of the expenses on medicines.
This letter was treated as a suo motu Writ Petition and
an order was passed by the High Court directing the
Government of Maharashtra to frame rules for medical
treatment and reimbursement of retired Judges of the
Bombay High Court.
G
H
Pursuant to the directions of the Court and in
exercise of the powers conferred under Section 230(2)
of the High Court Judges (Salaries and Conditions of
230
SECR., MIN. OF H. & FAMILY WELFARE, GOVT. OF
231
MAHARASHTRA v. S.C. MALTE
Service) Act, 1954, the State Government of Maharashtra
A
drafted the Maharashtra Retired High Court Judges
(Facilities for Medical Treatment) Rules, 2006, and placed
the same before the High Court. The amicus curiae
appearing for the suo motu writ petitioners (retired
Judges), however, suggested a change in the Draft Rules
B
of 2006 that the retired Judges be entitled to the medical
facilities and reimbursement provided in the Draft Rules
whenever the CGHS Scheme is not "availed of' instead
of not "available". The High Court disposed of the writ
petition with direction to the State Government to either c
notify the Draft Rules in the form suggested by the
amicus curiae or,amend the G.R. for medical benefits to
sitting Judges and extend the same benefits also to the
retired Judges in exercise of its power under sub-section
(2) of Section 24 of the High Court Judges (Salaries and
0
Conditions of Service) Act, 1954.
The Government of Maharashtra (the appellant) then
filed Civil Application for review of the order, but the High
Court rejected the prayer for review and directed the State
Government to comply with the order of the High Court
E
within two months. Aggrieved, the appellant filed this
appeal.
Referring the matter to larger Bench, the Court
HELD:
F
Per Swatanter Kumar, J.
1.1. It cannot be disputed and, in fact, has been
noticed in the judgment under appeal before this Court G
that different States have different rules to provide
medical facilities to the former judges of their respective
High Courts. Article 221 of the Constitution read with the
provisions of the Act is indicative of the fact that the
framers of the Constitution envisaged parity of such
H
232
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A facilities in the States. Variation in grant of medical
benefits from one High Court to another and one State
1to another, besides adding inequality also enhances the
possibility of a service cc1ndition being applied to a former
Judge of a High Court adversely. This variation in service
B conditions to the disadvantage of the Judge concerned,
is not permissible in law. [Para 12) [244-E-G; 245-8)
1.2. The conditions o,f service of judiciary, have to be
reasonable and free of arbitrariness. The element of
C arbitrariness or mercy must be eliminated so as to give
judiciary its deserved independence and freedom to work
effectively in the public interest and for attainment of the
eonstitutional goals. Any unreasonable restriction would
amount to interference with the doctrine of impartiality
and fairness applicable to the judiciary in all events. [Para
D 27) [253-0, F-G]
1.3. There is

## Text

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(20'12] 13 S.C.R. 230
A
THE SECRETARY, MINISTRY OF HEALTH & FAMILY
WELFARE, GOVERNMENT OF MAHARASHTRA
v.
S.C. MALTE & ORS.
(Civil Appea! Nos. 9020-9021 of 2012}
DECEMBER 13, 2012
[A.K. PATNAIK AND SWATANTER KUMAR, JJ.]
Judiciary - Medical facilities for retired High Court
C Judges and their dependent family members - Statutory
power of the State Government - Jurisdiction of the High
Court to direct the Stat4~ Government to frame particular rule
regarding medical facilities for the retired High Court Judges
- Difference of opinion - Matter referred to larger Bench -
ID High Court Judges (Salaries and Conditions of Service) Act,
1954 - s.230 - Maharashtra Retired High Court Judges
(Facilities for Medical Treatment) Rules, 2006 - r.2(a) -
Constitution of India, 1950 - Articles 32, 136 and 226.
Some retired Judges of the Bombay High Court
EE
moved a representation to the Chief Justice of the
Bombay High Court mentioning the difficulties faced by
them in getting medical facilities under the Central
Government Health Scheme (CGHS) and difficulties in
p respect of reimbursement of the expenses on medicines.
This letter was treated as a suo motu Writ Petition and
an order was passed by the High Court directing the
Government of Maharashtra to frame rules for medical
treatment and reimbursement of retired Judges of the
Bombay High Court.
G
H
Pursuant to the directions of the Court and in
exercise of the powers conferred under Section 230(2)
of the High Court Judges (Salaries and Conditions of
230
SECR., MIN. OF H. & FAMILY WELFARE, GOVT. OF
231
MAHARASHTRA v. S.C. MALTE
Service) Act, 1954, the State Government of Maharashtra
A
drafted the Maharashtra Retired High Court Judges
(Facilities for Medical Treatment) Rules, 2006, and placed
the same before the High Court. The amicus curiae
appearing for the suo motu writ petitioners (retired
Judges), however, suggested a change in the Draft Rules
B
of 2006 that the retired Judges be entitled to the medical
facilities and reimbursement provided in the Draft Rules
whenever the CGHS Scheme is not "availed of' instead
of not "available". The High Court disposed of the writ
petition with direction to the State Government to either c
notify the Draft Rules in the form suggested by the
amicus curiae or,amend the G.R. for medical benefits to
sitting Judges and extend the same benefits also to the
retired Judges in exercise of its power under sub-section
(2) of Section 24 of the High Court Judges (Salaries and
0
Conditions of Service) Act, 1954.
The Government of Maharashtra (the appellant) then
filed Civil Application for review of the order, but the High
Court rejected the prayer for review and directed the State
Government to comply with the order of the High Court
E
within two months. Aggrieved, the appellant filed this
appeal.
Referring the matter to larger Bench, the Court
HELD:
F
Per Swatanter Kumar, J.
1.1. It cannot be disputed and, in fact, has been
noticed in the judgment under appeal before this Court G
that different States have different rules to provide
medical facilities to the former judges of their respective
High Courts. Article 221 of the Constitution read with the
provisions of the Act is indicative of the fact that the
framers of the Constitution envisaged parity of such
H
232
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A facilities in the States. Variation in grant of medical
benefits from one High Court to another and one State
1to another, besides adding inequality also enhances the
possibility of a service cc1ndition being applied to a former
Judge of a High Court adversely. This variation in service
B conditions to the disadvantage of the Judge concerned,
is not permissible in law. [Para 12) [244-E-G; 245-8)
1.2. The conditions o,f service of judiciary, have to be
reasonable and free of arbitrariness. The element of
C arbitrariness or mercy must be eliminated so as to give
judiciary its deserved independence and freedom to work
effectively in the public interest and for attainment of the
eonstitutional goals. Any unreasonable restriction would
amount to interference with the doctrine of impartiality
and fairness applicable to the judiciary in all events. [Para
D 27) [253-0, F-G]
1.3. There is no reason for the State of Maharashtra
to have withdrawn its consent for substitution of the
words 'availed or in place of 'available'. It had ample time
E at its disposal, as various matters came up before the
Court on a number of hearings, particularly prior to such
s,ubstitution. It is expected of the State to act
inaccordance with the accepted canons of governance
and not to render the judicial proceedings Ineffective and
F inconclusive. [Para 28) [253-H; 254-A-B]
1.4. Lack of instructions from the Finance
Department was pleaded to be the sole ground for·
seeking review of the judgment of the High Court.
However, inter departmental dealing is a matter of internal
G management of the Government. The Government Is
represented as a unit before the Courts. How they
manage their internal affairs is for them to decide. The
High Court rightly held that it was not an error apparent
on the face of the record, justifying the review or
H satisfying the ingredients of Order XLVll Rule 1 of the
SECR., MIN. OF H. & FAMILY WELFARE, GOVT. OF
233
MAHARASHTRA v. S.C. MALTE
Code of Civil Procedure, 1908. Substitution of the word
A
'available' by 'availed of does not bring any prejudice in
law. On the contrary, it would be in conformity with the
constitutional requirements of equal treatment of all
Judges. [Para 29] [255-A-C]
B
1.5. Availability of uniform medical facilities for the
former Judges in the entire country can also be
substantially justified on another ground that there exists
transfer policy of High Court Judges. This policy has
been in force since 1994 and, therefore, this requires that C
the entitlement of former Judges and their dependent
family members should not vary from place to place.
Uniformity would remove another apprehension in the
minds of the Judges as to the Court from which they
retire. Presently, there are different benefits in different
States and, thus, the medical benefits at the Centre as
D
well as between the States are comparatively and
considerably different. This disparity leads to a patent
discrimination which should not be permitted. It will be
in the interest of all concerned, including the State
Governments, that complete uniformity is maintained in
E
relation to availability of medical facilities in terms of
Section 230 of the High Court Judges (Salaries and
Conditions of Service) Act, 1954 and procedure of
reimbursement of medical bills of the former Judges of
the High Courts. The Former Judges of the High Courts
should be placed at parity with the sitting Judges of the
High Courts. Thus, it will be appropriate for the competent
authority to frame/amend the rules in accordance with
this judgment and the constitutional mandate. [Para 30]
[256-A-E]
F
G
1.6. In order to ensure the absolute independence of
judiciary, in the interest of administration of justice and
for the Judges to act free of any apprehensive attitude
and to provide complete certainty to the service
H
234
SUPREME COURT REPORTS
(2012) 13 S.C.R.
A conditions of the former Judges of the High Courts, it is
directed that Rule 2(a) of the draft rules shall remain in
the form as directed by the High Court. The word
'available' shall stand substituted by the words 'availed
or. The State of Maharashtra is hereby directed to notify
B these rules forthwith. Henceforth, there shall be complete
uniformity in the 'grant of medical benefits' to the former
Judges of various High Courts. It may not only be
desirable but necessary for the Centre and the State
Governments to amend and alter the existing rules. If no
c rules are in force, to frame the rules on such uniform
lines. In relation to the medical facilities, the former
Judges of the High Courts would be placed at parity with
the facilities available to the sitting Judges and their
dependent family members. Providing such benefit and
D bringing uniformity in the rules shall be in the interest of
the State administration as well as administration of
justice. All the medic:al bills of the former Judges of
various High Courts shall be submitted to the Registrar
General of the concerned High Court, who shall, subject
to approval of the Chief Justice of that Court and in
E accordance with the rules in force, pay such bills (upon
due scrutiny) to the former Judges. The Union
Governmant and the State Governments are directed to
provide such 'head of expenditure', being part of the High
Court budget of the respective High Courts for
F reimbursement of medical bills of the former Judges. In
other words, the payment would be directly made by the
High Court to the form1er Judges and it, in turn, would be
reimbursed by the State Government. All the former
Judges of the High Courts would be entitled to receive
G medical facilities from the hospitals so empanelled by the
Central or the State Governments, as the case may be.
Till appropriate rules are framed by the appropriate
authority, these directions shall remain in force and shall
be abided by the executive. [Para 32] [256-H; 257-A-H;
H 258-A-C]
SECR., MIN. OF H. & FAMILY WELFARE, GOVT. OF
235
MAHARASHTRA v. S.C. MALTE
S.P. Gupta v. Union of India (1981) Supp. SCC 87;
A
Union of India v. R. Gandhi, President Madras Bar
Association (2010) 11 SCC 12010 (6) SCR 857; Brij Mohan
Lal v. Union of India (2012) 6 SCC 502; Supreme Court
Advocates-on-Record Association v, Union of India (1993) 4
SCC 441: 1993 (2) Suppl. SCR 659 and State of Bihar v.
B
Bal Mukund Sah (2000) 4 SCC 640: 2000 (2) SCR 299 -
referred to.
Case Law Reference:
(1981) Supp. SCC 87
referred to
2010 (6) SCR 857
referred to
(2012) 6 sec 502
referred to
1993 (2) Suppl. SCR 659 referred to
2000 (2) SCR 299
referred to
Per A.K. Patnaik, J. (dissenting)
Para 18
C
Para 23
Para 24
Para 25
D
Para 26
1. Section 230 of the High Court Judges (Salaries
and Conditions of Service) Act, 1954 is titled "Medical
E
facilities for retired Judges". It is clear from language of
sub-section (1) of Section 230 of the Act that every retired
Judge is entitled for himself and his family, to the same
facilities as respects medical treatment and on the same
conditions as a retired officer of the Central Civil Services,
F
Class-I and his family, are entitled under any rules and
orders of the Central Government for the time being in
force. However, under sub-section (2) of Section 230 of
the Act, power is vested in the Government of the State
to extend facilities for medical treatment to a retired G
Judge of the High Court for that State and his family
different from the facilities provided to a retired officer of
the Central Civil Services, Class-I and his family. This
statutory power is that of the State Government and
cannot be exercised by the High Court under Article 226
H
236
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A ;of the Constitution. The appellant, therefore, was right in
iurging a ground in these appeals that the High Court had
no jurisdiction to direct the State Government to frame
any particular rule regarding medical facilities of the
retired Judges of the Bombay High Court. [Paras 4, 5]
B [260-A-E-F-H; 261-A-B]
2. Neither the High Court in exercise of its power
under Article 226 of the Constitution nor this Court under
Article 32 or Article 136 of the Constitution can direct the
State Government to grant particular medical facilities to
C ~ retired High Court Judge when sub-section (2) of
Section 230 of the Act 1fests such power on the State
Government to grant medical facilities other than those
mentioned in sub-section (1) of Section 230 of the Act.
[Para 6] [261-F-H]
D
3. It was brought to the notice of this Court that some
of the State Governments in exercise of their powers
under sub-section (2) of Section 230 of the Act are
providing the same medical facilities and medical
E reimbursement to retired Judges and their families as are
being provided to sitting Judges of the High Court and
~heir families. In the light of the provisions regarding
medical facilities in other States, the Government of
Maharashtra must consiider extending better medical
F facilities to the retired Judges of the Bombay High Court,
but what exactly should be the provisions for medical
facilities can only be decided by the State Government
in exercise of its powers under sub-section (2) of Section
230 of the Act. [Para 8] [263-C-O; 264-A-B]
G
Supreme Court Employees Welfare Association v. Union
H
af India AIR 1990 SC 334: 1989 (3) SCR 488 and Ku/dip
Singh v. Union of India JT 2002 (2) SC 506 - referred to.
Case Law Reference:
1989 (3) SCR 488
referred to
Para 6
SECR., MIN. OF H. & FAMILY WELFARE, GOVT. OF
237
MAHARASHTRA v. S.C. MALTE
JT 2002 (2) SC 506
referred to
Para 7
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
9020-9021 of 2012.
A
From the Judgment & Order dated 15.01.2007 of the High
Court of Judicature of Bombay in Suo Moto Writ Petition No.
B
6285 of 2005 and dated 22.04.2008 in Civil Application No.
73 of 2008 in Suo Moto Writ Petition No. 6285 of 2005.
Sanjay V. Kharde, Asha Gopalan Nair for the Appellant.
Gaurab Banerji, ASG, R.K. Rathore, Ashok K. Srivastava,
Sadhana Sandhu, Arjun Krishan, Sushma Suri, D.S. Mahra,
Shridhar Y. Chitale, Saurabh Kapoor, Abhijat P. Medh for the
Respondents.
c
The Judgments & Order of the Court was delivered by
D
SWATANTER KUMAR J. 1. Leave granted.
2. Some of the former Judges of the Bombay High Court,
particularly those who are settled at Aurangabad, moved a
representation to the Chief Justice of that High Court explaining
E
the difficulties faced by them in getting medical facilities and
difficulties in respect of reimbursement of the expenses on
medicines. These former Judges also included Judges who
were appointed to the Bombay High Court but were
subsequently transferred under the transfer policy to other High
F
Courts. After the~r tenure, their efforts to resolve these issues
obviously did not result in bringing about any fruitful result. In
this representation, they also referred to various judgments
under which the full reimbursement was provided under different
rules as well as disparities that were prevalent in this respect,
G
in different States of the country. This representation came to
be treated as a suo motu Writ Petition on the appellate side of
the Bombay High Court. In this writ petition, on 13th October,
2005, after hearing the counsel appearing for the parties, the
Court noticed that some hospitals had been empanelled by the
H
238
SUPREME COURT REPORTS
[2012) 13 S.C.R.
A Government as approved hospitals under its Scheme. It was
noticed in the same order that the provisions under the Central
Government Health Scheme ('CGHS', for short) are inadequate
and under the scheme only a few hospitals in selected cities
are recognized for reimbursement of medical treatment. It was
a also mentioned in the letter sent to the Chief Justice of the
Bombay High Court that government hospitals in Aurangabad
did not have the facilities of proper diagnosis and treatment for
certain serious ailments and CGHS had not been extended to
Aurangabad where all the :said former Judges had settled after
c their retirement.
3. The contention of the learned counsel appearing for the
Union of India is that whme CGHS has not been extend~d.
there the former Judges can take the treatment from the
government hospitals and if any treatment is not available in
D the government hospitals, then they would be at liberty to go to
any hospital to which they are referred to by the doctors of the
government hospitals. Having noticed these difficulties and the
practical problems which had really become a matter of great
concern for the High Courts and the former Judges of the High
E Courts, the Court passed the following interim order:
"Meanwhile, the Hon'ble Retired Judges would be
permitted to get medical treatment from any of the hospital
mentioned in paragraph 4 on being referred by a Doctor
F
of Government Hospital and obviously their bills shall be
reimbursed expeditiously."
4. The Court passed another order dated 23rd June, 2006
laying down the procedure that should be adopted for dealing
with the medical bills of the former Judges and directed as
G under:
"Neither the State Government nor the Central Government
have challenged that order so far. This being the position,
now the modalities of actual working will have to be set
H
down. In view of this State of affairs, we propose to pass
SECR., MIN. OF H. & FAMILY WELFARE, GOVT. OF
239
MAHARASHTRA v. S.C. MALTE [SWATANTER KUMAR, J.]
an order whereby as in the case of the retired Supreme
A
Court Judges as permitted by the Central Government by
its office Memorandum dated 06.02.2002, medical bills of
the retired High Court judges at Aurangabad will be signed
by the Registrar (Administration) and countersigned by the
medical officer and then passed by Registrar General. The
B
Officers shall certify the bills whether for indoor treatment
or for the purchase of medicines. The bills will be cleared
by the State Government to begin with and thereafter the
Central Government will reimburse the amount paid by the
State Government. We would like the Central Government c
Counsel and the State Government Counsel to react on
this, if at all there are any difficulties in the working of this
procedure."
5. The case remained pending before the Court and during
the hearing of the petition on 7th July, 2006, it was stated on
D
behalf of the State Government that the Government was in the
process of framing Rules in compliance with the directions
contained in the orders of the Court dated 13th October, 2005
and 23rd June, 2006.
6. Vide its order dated 17th July, 2006, the High Court
directed the State Government to frame Rules within three
months and continued the operation of the interim order dated
13th October, 2005. Pursuant to the directions of the Court and
E
in exercise of the powers conferred under Section 230(2) of
F
The High Court Judges (Salaries and Conditions of Service)
Act, 1954 (for short, the 'Act'), the State of Maharashtra framed
the Rules titled the Maharashtra Retired High Court Judges
(Facilities for Medical Treatment) Rules, 2006 (for short, the
'draft Rules'). These draft Rules were submitted before the High
G
Court. Thereafter, when the writ petition was taken up for
hearing, the Amicus Curiae for the petitioners (retired Judges)
suggested a change to be made in Rule 2(a) of the draft Rules.
Rule 2(a) reads as under :
"2. Medical facilities for retired High Court Judges
H
A
e
c
240
SUPREME COURT REPORTS
[2012] 13 S.C.R.
and family members dependent on them-
(a) Any person who was appointed and served as a High
Court Judge for High Court of Judicature at
Bombay and settled in the State of Maharashtra
and his family members dependent upon him shall
be entitled whenever the Central Government
Health Scheme (CGHS) is not available, to receive
the reimbursement of medical expenses incurred in
any hospital recognized by the State Government
to render whole time medical services as such
person shall be entitled."
7. Amendment suggested to the above Rule was that the
words 'shall be entitled whenever the Central Government
Health Scheme (CGHS) is not available' be substituted by the
D words 'shall be entitled whenever the Central Government
Health Scheme (CGHS) is not availed of. Initially the suggestion
was opposed on behalf of the State. The Principal Secretary
and RLA, Law and Judicial Department was present in Court,
however, the Secretary, Finance Department was not. The
E matter was then deliberated before the Court. Thereafter, the
suggestion made was acceded to and it was said that they
would take concurrence of the Finance Department on the
suggested change. The Court, thus, directed the change in the
draft Rules, as suggested. The High Court vide its judgment
F dated 15th January, 2007 recorded that the CGHS was
available only in three cities of the State of Maharashtra, i.e.,
Bombay, Nagpur and Pune. The Court, while noticing the
agreed amendment to Rule 2(a), recorded its conclusion and
relief as under :
G
"The learned Amicus Curiae has gone through the Rules.
It is submitted that these Rules will substantially cover the
grievances as raised by the petitioners. Since the power
conferred on the State Government is pursuant to Section
230(2) it will be open to the State Government to either
H
notify°the said Rules in the forum which they have now been
SECR., MIN. OF H. & FAMILY WELFARE, GOVT. OF
241
MAHARASHTRA v. S.C. MALTE [SWATANTER KUMAR, J.]
presented or it is open to the State Government to amend
A
the G.R. which provides for medical benefits to sitting
judges and extend the same benefit also to the retired
judge, who are covered by the draft rules as submitted and
which is substantially the same. It is made clear that these
Rules will apply to the Judges who were appointed as
B
Judges of this Hon'ble Court and have since retired and
are settled in the State of Maharashtra and Goa."
8. While making the Rule absolute, the High Court directed
the State to notify the Rules or to amend the Government
C
resolution in light thereof. After the pronouncement of the above
judgment and lapse of a considerable period of time, on 8th
October, 2007 the State Government filed an application stating
that the counsel and the officer giving consent for change, by
substitution of the words 'availed of in place of 'available', did
not realise the repercussions of the amendment and had not
D
obtained the concurrence of the Finance Department.
Therefore, it was contended that the application should be
allowed, the change directed by the Court in the draft Rules be
deleted and the Rules in the original form be permitted to be
notified. This application was dismissed by a detailed order of
E
the High Court dated 22nd July, 2008. The High Court
repeatedly noticed that the CGHS was not available and
keeping in view the facts and circumstances of the case,
recorded that there was no occasion for exercising the review
jurisdiction, as the order did not suffer from any apparent error.
F
The matter was adjourned on different dates for the State
Government to give response to the contentions raised by the
Amicus Curiae. It was also noticed in this order that some State
Governments, including those of U.P. and Andhra Pradesh, had
extended the facilities of medical treatment to the retired
G
Judges of their respective High Courts. The review application
was thus dismissed as being without any merit. Thereupon, the
State was directed to comply with the orders of the High Court
within two months.
H
242
SUPREME COURT REPORTS
[2012] 13 S.C.R.
A
9. Aggrieved from the orders dated 15th January, 2007
and 22nd April, 2008, the State of Maharashtra has preferred
the present appeal by way of special leave before this Court.
The matter was finally heard at the 'After Notice' stage.
8
10. Before I delve into the issues arising in the present
appeal, it will be appropriate for the court to examine what kind
of a right 'medical facilities to the judges and/or the former
Judges of the High Court' is. The Judges of the High Courts of
the respective States are appointed under Article 217 of the
C Constitution of India (for sho11 "the Constitution"). Such Judges
are appointed by the President by warrant under his hand and
seal after consultation with the Chief Justice of India and the
Governor of the State and they hold office till the age of 62 years
sub1ect to the provisions contained in Article 217 of the
Constitution. In terms of Article 221 of the Constitution, the
D Judges of each High Court shall be paid such salaries as may
be determined by the Parliament by law and every Judge shall
be entitled to such allowanCE~s and to such rights in respect of
leave of absence and pension as the case may be and as
determined from time to time under the law by the Parliament.
E Proviso to Article 221 of the Constitution categorically states
that neither the allowances of a Judge nor his rights in respect
of leave of absence shallbe varied to his disadvantage after
hi1s appointment.
F
11. Article 229(3) concerns itself with administrative
expenses, including salaries, allowances and pensions payable
to or in respect of the officers and servants of the court, which
shall be charged upon the Consolidated Fund of the State and
any fees or other monies taken by the court shall form part of
G that fund. These are some constitutional provisions which
indicate the constitutional protections in the Page 23 form of
legal rights that are available to the judges of the High Court.
The Indian Parliament enacted The High Court Judges (Salaries
and Conditions of Service) Act, 1954. This Act provided the
H conditions of service of sitting judges and even that of acting
SECR., MIN. OF H. & FAMILY WELFARE, GOVT. OF
243
MAHARASHTRA v. S.C. MALTE [SWATANTER KUMAR, J.]
judges who had been appointed in terms of clause (2) of Article
A
224 of the Constitution. It dealt with the leave and/or allied
subjects thereto such as salaries, pension, family pension,
provident fund and other miscellaneous items. The
miscellaneous items included travelling allowance, rent free
house and medical facilities. It made a specific provision with . B
regard to medical facilities available to the former judges of the
High Court. Section 230 dealt with this aspect, while Section
23A dealt with the facilities for medical treatment of the sitting
judges. These provisions read as under:-
"23A. (1 ). Every Judge and the members of his family shall
C
be entitled to such facilities for medical treatment and for
accommodation in hospitals as may from time to time, be
prescribed.
(2) The conditions of service of a Judge for which no
0
express provision has been made in this Act shall be such
as may be determined by rules made under this Act.
(3) This section shall be deemed to have come into force
on the 26th January, 1950, and any rule made under this
E
section may be made so as to be retrospective to any date
not earlier than the commencement of this section.
xxxxx xxxx xxxxx
230(1 )Every retired Judge shall, with effect from the date
F
on which the High Court Judges (Conditions of Service)
Amendment Act, 1976, receives the assent of the
President be entitled for himself and his family, to the same
facilities as respects medical treatment and on the same
conditions as a retired officer of the Central Civil Services,
G
Class-I and his family, are entitled under any rules and
orders of the Central Government for the time being in
force.
(2) Notwithstanding anything in subsection (1) but subject
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[2012] 13 S.C.R.
A
to such conditions and restrictions as the Central
Government may impose a retired Judge of the High Court
for a State may avail, for himself and his family, any
facilities for medical treatment which the Government of
that State may extend to him."
B
12. Section 230 of the Act deals with the medical benefits
to which the former Judges of the High Court and their family
members would be entitled to. This provision states that they
would be entitled to similar medical benefits as may be
prescribed through appropriate rules by the State and to the
C retired Class I Civil Services officers. Sub-section (2) of Section
230, in fact, is an exception to Section 230(1) of the Act. The
non-obstante clause of sub-section (2) makes it clear that the
legislature intended to provide the medical benefits to the
former Judges in terms of the law framed by the State but with
D restrictions as may be imposed by the Central Government. It
provides that notwithstanding anything contained in sub-Section
(1), but subject to conditions and restrictions as the Central
Government may impose, a retired judge of the High Court for
the State may avail for himself and his family, any facility for
E medical treatment which the Government of that State may
extend to him. It cannot be disputed and, in fact, has been
noticed in the judgment under appeal before this Court that
different States have different rules to provide medical facilities
to the former judges of their respective High Courts. Article 221
F of the Constitution read with the provisions of the Act is
indicative of the fact that the framers of the Constitution
envisaged parity of such facilities in the States. Variation in
grant of medical benefits from one High Court to another and
one State to another, besides adding inequality also enhances
G the possibility of a service condition being applied to a former
Judge of a High Court adversely. For instance, a Judge of Court
'A', upon his retirement, would be entitled to the medical benefits
provided by the State to the former Judges of High Court 'A'.
But, if such a Judge is transferred to High Court 'B', he would
H be entitled to the medical benefits as allowed by the State to
SECR., MIN. OF H. & FAMILY WELFARE, GOVT. OF
245
MAHARASHTRA v. S.C. MALTE [SWATANTER KUMAR, J.]
the former Judges of High Court 'B'. There may be disparity
A
between the medical benefits of High Court 'A' and 'B', like the
High Court 'A' may be extending the same benefits as that of
a sitting Judge while the High Court 'B' may be giving the said
benefit to a limited extent of the CGHS or any other scheme
formulated by the concerned State. This would result in variation
B
in service conditions to the disadvantage of the Judge
concerned, which is not permissible in law.
13. This variation is to the extent that some States/Courts
provide for complete reimbursement while others do not. In
C
some States there are rules permitting partial reimbursement,
while in some others even the rules have not been framed to
provide for adequate medical facilities. The non-availability of
CGHS is another major concern and wherever the CGHS is
available, availability of its benefits and impediments in its
smooth application are obvious from the very ineffective
D
implementation of the Scheme. The CGHS, firstly, is not even
available in all the major cities, much less in and around the
rural areas and secondly, the procedure specified under the
scheme is quite complex and impracticable. The Scheme
contemplates prior permission for referral hospitals. In normal
E
course of sickness, it requires the Head of the concerned
specialty in the hospital to grant such permission, subject to
furnishing of the requisite documents, which itself may frustrate
the purpose of reference to an outside hospital. In emergencies,
one has to comply with the entire procedure of ex-post facto
F
approval, which appears to be in order.
14. The eligibility criteria and the method in which the
CGHS can be availed of on paper appear to be sound, but
when it comes to practice, things are quite unsatisfactory.
G
Receiving a medicine, availability of drugs, the rush in the
hospitals, payment of bills under the CGHS are some of the
practical problems that are faced by everyone, of which the
Court can even take a judicial notice. Attempts under the
Scheme have been made by introducing different aspects like
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[2012] 13 S.C.R.
A medical audit of hospital bills, holding of claim adalats,
establishment of local advisory committees, decentralization .
and delegation of powers etc., but they ultimately do not serve
the purpose of effective and readily available medical facilities
to the concerned persons.
B
15. The Court cannot ignore the harsh reality that the rates
stipulated under the CGHS and its approved hospitals are
much lower than the prevalent rates for providing such
treatments in other hospitals. Thus, the State employees and
even the former Judges. of the Courts have to provide for the
C difference in rates from their own pockets, if they take treatment
from other private hospitals. Of course, an attempt has been
made by the Central Government while introducing a specific
clause, being clause 15 in the conditions of tender, relating to
validity of CGHS rates which requires that for the stipulated
D period, the empanelled institutions shall not charge more than
CGHS rates. But the stated difficulty will still prevail where
CGHS is not in force and/or there are no empanelled hospitals.
In such a situation, the basic right sought to be protected under
the rules would stand violated.
16. The Court is certainly not oblivious to the problems
faced by the Central Government in this behalf, but that by itself
cannot be reason enough to overlook the practical problems
faced by the people and particularly, the former Judges of the
F High Courts. One aspect that deserves attention is that in the
year 1994, the policy in relation to transfer of Judges at the High
Court level was introduced and has been, thereafter, applied
quite frequently. A Judge may be appointed to one Court,
transferred to another and still another, from where he retires.
G It results in dual problems to the former Judge; firstly, in relation
to availability of medical facilities and secondly, with regard to
reimbursement of the medical bills. The nature of the right to
medical facility is 'statutory'. It, being a condition of service,
cannot be altered or changed to the disadvantage of the former
H Judges. Such is the requirement of law.
SECR., MIN. OF H. & FAMILY WELFARE, GOVT. OF
247
MAHARASHTRA v. S.C. MALTE [SWATANTER KUMAR, J.]
17. In normal discharge of his duties, a Judge has to decide
A
a case in favour and against the Government as well. While
performing his duties in accordance with law, the courts do
pass some orders of severe or serious consequences, against
the State Government or an officer in its hierarchy. The Courts
also deal with penal proceedings under the Contempt of Courts
B
Act at the level of the higher judiciary. In this process, the courts
are likely to pass orders which may not be to the liking of the
executive hierarchy of the State. In such circumstances, the
possibility of bias against the Judges in the minds of the
Executive cannot be entirely ruled out. This may have the impact c
of, if nothing else, lowering the degree of impartiality and
independence of judiciary.
Relevance of Independence of Judiciary
18. Another important facet of this statutory right is
D
relatable to the independence of judiciary. I may refer to some
judgments of this Court, which have dealt with the
independence of judiciary with reference to the Constitution of
India. Referring to the functions of the judiciary, this Court in the
case of S.P. Gupta v. Union of India [(1981) Supp. SCC 87],
E
held:
" ... what the true function of the judiciary should be in a
country like India which is marching along the road to
social justice with the banner of democracy and the rule
of law, for the principle of independence of the judiciary is
not an abstract conception but it is a living faith which must
derive its inspiration from the constitutional charter and its
nourishment and sustenance from the constitutional values.
F
It is necessary for every Judge to remember constantly and
continually that our Constitution is not a non-aligned
G
national charter."
The Court further held:
"the principle of independence of judiciary is the basic
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B
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[2012] 13 S.C.R.
feature of the Constitution. It cannot remain content to act
merely as an umpire but it must be functionally involved in
the goal of socioeconomic justice. In this judgment, the
court also referred to the observations recorded by Justice
V. Krishna Iyer in the case of Union of India v.
Sankalchand Himatlal Sheth (1977) 4 SCC 193:
"Independence of the Judiciary is not genuflexion; nor is it
opposition to ever propo:sition of Government. It is neither
Judiciary made to Oppoi;ition measure nor Government's
pleasure."
19. Besides referring to these remarks, the court with great
emphasis noticed the views expressed by Dr. Rajendra Prasad
that the Constitution undoubtedly made clear provisions for an
independent judiciary and observed:
"We have provided in the Constitution for a judiciary which
will be independent. It is difficult to suggest anything more
to make the Supremie Court and the High Courts
independent of the influence of the executive. There is an
attempt made in the Constitution to make even the lower
judiciary independent of any outside or extraneous
influence. One of our articles makes it easy for the State
Governments to introduce separation of executive from
judicial functions and placing the magistracy which deals
with criminal cases on similar footing as civil courts. I can
only express the hope that this long overdue reform will
soon be introduced in the States."
20. In Sankalchand Himatla/ Sheth (supra), the Court also
referred to the view of Pt. Jawahar Lal Nehru who said that it
was important that the High Court Judges should not only be
G first- rate but should be of the highest integrity, people, who can
stand up against the executive Government and whoever come
illl their way. According to Dr. Ambedkar, independence of
jwdiciary was of the greatest importance and that there could
be no difference of opinion that the judiciary had to be
H imdependent of the executive.
SECR., MIN. OF H. & FAMILY WELFARE, GOVT. OF
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MAHARASHTRA v. S.C. MALTE [SWATANTER KUMAR, J.]
21. In this very judgment, the Court, while referring to the . A
form of oath prescribed in clause VIII, Third Schedule of the
Constitution, for a Judge or a Chief Justice of the High Court
also noticed that it requires him to affirm that he will perform
the duties of his office "without fear or favour, affection or ill will".
The words ''without fear or favour" have some significance.
B
Relevancy of such expressions is traceable to various
constitutional provisions. In terms of Article 202(3)(d), the
expenditure in respect of the salaries and allowances of High
Court Judges is charged on the Consolidated Fund of each
State and Article 112(3)(d)(iii) enunciates that pensions c
payable to the High Court Judges are charged on the
Consolidated Fund of India. By virtue of Article 113(1) the
pensions are not subject to the vote of the Parliament. The court
also noticed: "Now the independence of the judiciary is a
fighting faith of our Constitution. Fearless justice is a cardinal
0
creed of our founding document. It is indeed a part of our
ancient tradition which has produced great Judges in the past.
In England too, from where we have inherited our present
system of administration of justice in its broad and essential
features, judicial independence is prized as a basic value and
E
so natural and inevitable it has come to be regarded and so
ingrained it has become in the life and thought of the people
that it is now almost taken for grantedand it would be regarded
an act of insanity for anyone to think otherwise."
22. Besides this, the court also noticed that the framers
of the Constitution were aware of this constitutional development
in England and were conscious of our great tradition of judicial
independence and impartiality and they realized that the need
for securing the independence of judiciary was even greater
under our Constitution than it was in England.
23. At this stage, reference to the judgment of this court in
the case of Union of India v. R. Gandhi, President Madras Bar
Association [(2010) 11 SCC 1 ], with reference to
independence of judiciary would be proper and, in fact,
F
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A inevitable. A five-Judge Bench of this Court not only observed
B
c
D
E
F
G
but formatively stated:
" ... impartiality,
independence,
fairness
and
reasonableness in decision making are the hallmarks of
judiciary. If "Impartiality" is the soul of the judiciary,
"Independence" is the lifeblood of the judiciary. Without
independence. impartiality cannot thrive. Independence is
not the freedom for Judges to do what they like. It is the
independence of judicial thought.