Union Of India vs Sh. S. Srinivasa Rao & Ors.
2011 Latest Caselaw 5379 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    Date of decision: 8th November, 2011

+                             LPA No.353/2007

%     UNION OF INDIA                                        .......Appellant
                   Through:         Mr. Saquib, Advocate.

                                 Versus

    SH. S. SRINIVASA RAO & ORS.                 ..... Respondents
                   Through: Ms. Sushma Singh, Adv. for Mr.
                            Sudhir Kulshreshtha, Adv. for R-2 to
                            3.
CORAM :-
HON'BLE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
                             JUDGMENT

RAJIV SAHAI ENDLAW, J

1. The challenge in this appeal is to the judgment dated 6th November,

2006 of the Learned Single Judge in W.P.(C) No.6793/2006 preferred by the

respondent no.1 herein directing the appellant to provide Central

Government Health Scheme (CGHS) benefits to the respondent no.1 as well

as the other retired employees of the respondent no.3 National Seeds

Corporation Ltd. (NSC).

2. Notice of the appeal was issued and vide order dated 21 st May, 2007

which continues to be in force, the operation of the impugned judgment

stayed. The respondent no.1 has failed to appear inspite of service and is

proceeded against ex parte. The respondent no.2 Ministry of Agriculture and

the respondent no.3 NSC have supported the appeal.

3. Though respondent no.3 NSC is a company incorporated under the

provisions of the Companies Act, the learned Single Judge has given two

reasons for holding the respondent no.1 eligible to CGHS benefit as

available to the retired employees of the Central Government. Firstly,

because CGHS benefit was available to the respondent no.1 while in service

of the respondent no.3 NSC and secondly because health is an integral part

of right to life.

4. The appellant in its appeal has contended that the respondent no.3

NSC is an independent entity and functions on commercial basis; its funds

are raised through issuance of shares and borrowings from commercial

banks; the Government does not provide any budget/financial aid to the

respondent no.3 NSC; the Government does not have any financial control

over the respondent no.3 NSC; that CGHS facility is provided by Ministry

of Health and Welfare consequent upon contribution made by the employees

or the employer; that the respondent no.3 NSC is not a pensionable

establishment and does not contribute for CGHS benefit to its retired

employees; that payment of pension is a pre-condition for CGHS benefit to

retired Government employees; that the respondent no.1 is neither a retired

Government employee nor a pensioner and thus not entitled to the CGHS

benefit.

5. The respondent no.3 NSC in its counter affidavit has explained that its

employees enjoy CGHS facility during their service tenure owing to its

arrangement with CGHS and merely for the said reason, they cannot be held

entitled to such benefit post retirement also.

6. We are unable to find any right in the respondent no.1 to the CGHS

benefit or any obligation in the appellant to provide the same to the

respondent no.1. The reasons given by the learned Single Judge are not

found to be germane for extending the said benefit to the respondent no.1.

Moreover, there is nothing before us to show that respondent no.3 NSC can

be treated as Government whose employees as per their service conditions

are entitled to CGHS benefit post retirement also. Also, though right to

health is undoubtedly a part of right to life but the same cannot entitle all

citizens to benefit of scheme meant for employees of Government only.

7. The learned Single Judge has based his judgment solely on the

judgment dated 2nd February, 2006 of the Division Bench of this Court in

LPA No.499/2004 titled UOI v. SPA Retd. Employees' Welfare Association

and other connected appeals. The School of Planning and Architecture

(SPA) is also a Society and the CGHS benefits were extended to the serving

employees of SPA also. However in that case the plea was, of the benefit of

CGHS having not been extended to the retired employees of SPA for lack of

financial resources. It was in the context of the said plea/defence that it came

to be held that the same could not deprive the retired employees of SPA

from the benefit of CGHS Scheme. Of course, the argument of right to good

health was also accepted. We may however mention that SLP (Civil)

No.8213/2006 (Civil Appeal No.10310/2011) against the said judgment is

shown to be pending.

8. However, we find much development thereafter. A Single Judge of

this Court in J.K. Sawhney v. Punjab National Bank 169 (2010) DLT 743

held the retired employees of the Bank to be not entitled to medical

reimbursement when the bi-partite settlement between the Bank and its

employees did not provide therefor. It was further held that those not

covered by the CGHS could not be given benefit thereof and the question as

to who should be entitled to benefit under the Scheme is a matter of Policy

and in which the Courts cannot intervene.

9. Intra Court appeal being LPA No.437/2010 preferred against the

aforesaid judgment was dismissed on 6th September, 2010. It was held that

though it is the Constitutional obligation of the State under Article 21 of the

Constitution to safeguard the life of every person and such right is a right to

lead healthy life but no law mandates that every citizen is entitled to free

medical treatment without any limitation on the amount that can be claimed

as reimbursement. Reliance was placed on State of Punjab v. Ram Lubhaya

Bagga (1998) 4 SCC 117 laying down that no State or country can have

unlimited resources and provision of facilities cannot be unlimited and that

the courts would not interfere with any opinion formed by the Government.

10. We find the question as raised herein to have been again raised, this

time by the employees of Nehru Memorial Museum and Library; they also

claimed the benefit of the CGHS Scheme. The said writ petition was allowed

in President, CCRH Scientists Welfare Association v. UOI 179 (2011) DLT

21 following the dicta in SPA Retd. Employees' Welfare Association

without noticing the judgment in J.K. Sawhney (supra). The Intra Court

appeal being LPA No.587/2011 preferred thereagainst was dismissed vide

order dated 18th July, 2011.

11. We may notice that CGH Scheme is not applicable to all citizens. The

said Scheme was introduced in the year 1954 with a view to providing

comprehensive medical facilities to the Central Government employees and

their family members and in specified cities only. Only the persons

specified in the Scheme are eligible to avail medical facilities thereunder.

The employees and the pensioners availing CGHS are required to make

contribution every month depending upon their pay/pension. Another

Division Bench (of which one of us i.e. the Acting Chief Justice was a

member) of this Court is Dal Chand Vashisht v GNCTD (2008) VI AD

(Delhi) 44 observed that such schemes are contributory in nature and are

structured on the same lines as the insurance schemes where the burden is

shared by all the contributories collectively for the benefit of those who may

need to draw from the common pool thus created; it was expressly observed

that CGHS for retired civil servants was a contributory scheme; that to be

able to obtain benefit of CGHS it is essential to be a member thereof. It was

further held that merely because the Government may also provide funds

from its coffers to top up the expenses/outgo from such schemes, would not

affect the contributory nature thereof. It would thus be seen that CGHS is

essentially contractual in nature and without being a member/contributory

thereof, a person cannot claim the benefits thereunder. It is nowhere the case

of the respondent no.1 that he even post his voluntary retirement from

respondent no. 3 NSC continued to be a member/contributory of CGHS. His

claim in the writ petition was predicated only on the judgment of this court

in SPA Retd. Employees' Welfare Association (supra).

12. Reference may be made to the judgment of the Constitution Bench of

the Supreme Court in Confederation of Ex-Servicemen Associations v UOI

(2006) 8 SCC 399 in which the claim of ex-defence personnel to full and

free medical aid for themselves and their families as a Fundamental Right

was for consideration; they were challenging the contribution for the

healthcare scheme introduced, demanded from them inter alia on the ground

that since they were entitled to free full medical aid while in service, they

were entitled thereto post retirement also and on the ground that the

members of the civil service were availing CGHS benefits during service as

well as post retirement. The Supreme Court negated the said challenge and

held the classification between in-service and ex-service employees to be

legal, valid and reasonable and further held that extension of the benefits

enjoyed while in service, post retirement cannot be claimed as a right.

13. It would thus be seen that CGHS has nothing to do with the right to

life asserted and the right to unlimited medical aid for all citizens has been

negated.

14. As far as the claim of the respondent no.1 in the writ petition of the

respondent no.3 NSC being a Government of India Undertaking and its

employees being entitled to the same benefits as employees of the Central

Government is concerned, we may notice that the Supreme Court in

Hindustan Antibiotics Ltd. v. Workmen AIR 1967 SC 948 held that the

service conditions of employees in Public Sector Undertakings are not

analogous to those of government employees; the PSU employees do not

have security of service, the Fundamental Rules do not apply to them, there

is no pension, they are covered by service standing orders and their service

conditions are more similar to those of employees of private sector than

those of government departments. The said five Judge Bench judgment of

the Supreme Court was discussed by another five Judge Bench of the

Supreme Court in Kishan Prakash Sharma v. UOI AIR 2001 SC 1493.

Similarly in Dr. S.L. Agarwal v. General Manager, Hindustan Steel Ltd.

(1970) 1 SCC 177, a five Judge bench of the Supreme Court held another

PSU namely Hindustan Steel Ltd. to be not a department of the Government

and its employees to be not government servants.

15. We may in this regard notice that a Division Bench of this Court in

National Seeds Corporation Employees' Union v. National Seeds

Corporation AIR 1972 Del 292 held even a writ petition to be not

maintainable against the respondent no.3 NSC. This judgment was followed

in Gurbaksh Singh v. Delhi State Industrial Development Corporation

AIR 1978 Del 262.

16. The appeal therefore succeeds. The order dated 6th November, 2006 is

set aside and the writ petition filed by the respondent no.1 is dismissed.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE

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