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CASE NO.: Writ Petition (civil)  210 of 1999

PETITIONER: CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS & ORS.                               

RESPONDENT: UNION OF INDIA & ORS.                            

DATE OF JUDGMENT: 22/08/2006

BENCH: CJI Y.K. SABHARWAL,K.G. BALAKRISHNAN,S.H. KAPADIA,C.K. THAKKER P.K. BALASUBRAMANYAN

JUDGMENT: JUDGMENT

C.K. THAKKER, J.

This petition under Article 32 of the Constitution is  filed as Public Interest Litigation (PIL) by petitioner- Confederation of ex-serviceman Associations for an  appropriate writ directing the respondent-Union of India  to recognize the right of full and 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 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 Associations which have formed a  Confederation in furtherance of common cause for  welfare of ex-defence personnel.  They are;  (i) Air Force Association;  (ii) India Ex-services League;  (iii) Naval Foundation;  (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  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 responsibility for medicare  of disabled ex-servicemen as also for their rehabilitation.  Disabilities, which were categorized, were as  follows: (i)     Loss of limb or use of limb; (ii)    General medical and surgical disability; (iii)   Loss of speech;

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(iv)    Deafness; (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 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 examine the issue as to availability of  medical facilities to members of Armed Forces. In 1984,  a High Level Committee headed by the then Rajya  Raksha 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 1990, 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), CDM Study Report (1987),  Report on Army Logistics Philosophy (1987), Verma  Committee (1988), Narsimhan Committee (1990), Vijay  Singh Committee (1990), etc. In 1993, Lt. Gen. N. Foley  Committee again examined the problem of medicare 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 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 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 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.100 per month for  ex-servicemen living in rural areas who could not avail  themselves of military/civil hospital facilities. 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 of facilities would not be sufficient to ex- servicemen suffering from such diseases. The

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Regulations were also silent about modern 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 by 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 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 of Shri B.K. Gadhvi, Member 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 been made by the Associations, the  Government of India had never taken the matter  seriously as regards the medical services to be provided  to ex-servicemen. 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 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  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. 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 Bench in Consumer  Education and Research Centre and Ors. v.  Union of India and Ors. (1995) 3 SCC 42.  Since we are, prima facie, 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

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observations in Consumer Education & 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) 1 SCC 1 observed that initially the matter  was required to be heard 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 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 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 Out-patient  Treatment as specified in the Regulations of 1983 within  the available 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 recommendations of  Fifth Pay Commission, the Government had sanctioned  fixed medical allowance of Rs.100 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 Insurance Medical Benefit  Scheme, Army Dialysis Centres, etc. It was then stated  that the Government had extended certain medical  amenities to ex-servicemen 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  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 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

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facilities under Central Government Health Scheme  (’CGHS’ for short) 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, 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. 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 that on September 13, 1999, Assistant Chief  of Personnel (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 Union of India in the counter affidavit  already filed. 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. It was also stated at the Bar that during the  pendency of the writ petition, the Government of India  had introduced a scheme known as "Ex-Servicemen  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 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 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 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 were made and recommendations were

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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-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 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 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. 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 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 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 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 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

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keeping in view financial capacity and available means,  it has to undertake its obligations of providing social  services including medical facilities 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 benefits had been  extended from time to time. Regarding medical facilities  in serious and terminal diseases, it was submitted that  in past, such facilities 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 ex-servicemen. 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 the scheme  is contributory. But considering the amount of  contribution which is ’one time payment’ and is really  negligible, it cannot be contended that the action is  arbitrary, irrational or in the nature of deprivation of ex- servicemen from getting necessary medical services. If  ex-servicemen intend to take benefit of the scheme, they  may exercise option, may become members and may  avail benefits thereunder by paying contribution on the  basis of the amount of pension received by them. In that  case, they would not be entitled to financial assistance  given to them. If they are not willing to be members of  the scheme, it is not necessary for them to pay the  amount of contribution but they would not be entitled to  medical benefits under the scheme. It was also stated  that this is to a limited class of employees who have  retired prior to January 1, 1996 as thereafter, the  scheme has been made applicable and contribution has  been charged from all the employees. It was, therefore,  submitted that no case can be said to have been made  out by the petitioner so as to hold the action of the  respondents unlawful or otherwise unreasonable and the  petition deserves to be dismissed. We have given anxious and thoughtful  consideration to the rival contentions raised by the  parties. So far as the preliminary objection regarding  maintainability of the petition is concerned, it may be  stated that the petitioner has asserted in the petition  that it is a Confederation of five ex-servicemen  Associations formed in furtherance of common cause.  The aims and objects of the Confederation have also  been annexed as set out in the MoU (Annexure ’P-1’). In  the affidavit in reply filed by the Under Secretary working  with the Ministry of Defence, it was stated that he is ’not  aware’ of the existence of the petitioner organization. He,  however, stated that the organization ’does not seem’ to  be registered body to represent the cause of ex- servicemen. The rejoinder affidavit unequivocally states  that the objection raised by the Union of India is  incorrect. The Confederation was registered under the  Societies’ Registration Act, 1860. Likewise, all  Associations which constitute the Confederation are  similarly registered individually. It is further stated that  Air Force Association and Indian Ex-Services League are  even recognized by the Ministry of Defence, Union of  India. It, therefore, cannot be said that the petitioner- Confederation is not registered and the petition filed is  not maintainable. In view of the fact that some of the

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Associations have been recognized even by the Ministry  of Defence, the deponent ought not to have raised the  objection regarding maintainability of the petition  without ascertaining full facts and particulars. We leave  the matter there holding the petition maintainable. We are also satisfied that the contention of the  respondent is even otherwise not tenable at law. A  similar point came up before a Constitution Bench of  this Court in the well known decision in D.S. Nakara v.  Union of India, (1983) 1 SCC 305. There also, one of the  petitioners was a Society registered under the Societies’  Registration Act, 1860. It approached this Court for  ventilating grievances of a large number of old and infirm  retirees who were individually unable to approach a  court of law for redressal of their grievances. This Court  held locus standi of the Society ’unquestionable’. In the  present case, apart from the fact that a larger public  issue and cause is involved, even individually, all  Associations are registered Associations of ex- servicemen. The petitioner-Confederation representing  those Associations which is also registered, can certainly  approach this Court by invoking the provisions of Part III  of the Constitution. We, therefore, reject the preliminary  objection raised by the respondents and hold that the  petitioner-Confederation has locus standi to file the  petition. In our view, however, maintainability of petition  and justiciability of issues raised therein are two  different, distinct and independent matters and one  cannot be mixed or inter-linked with the other.  

It was strenuously contended that when in-service  defence personnel have been provided full and free  medical services, refusal to extend similar facilities and  benefits to ex-servicemen would result in discriminatory  treatment, violative of Article 14 of the Constitution. It  was also urged that members of civil services have been  provided all medical facilities, irrespective of the fact  whether they are in service or have retired. In the  submission of the counsel, if in-service defence  personnel have been provided full and free medical  services, the same benefit should be extended to retired  defence personnel. Likewise, when employees from civil  services have right to get full and free medical facilities,  the same yardstick must be applied to retired defence  personnel as well. Retired civil servants and retired  defence personnel stand on one and the same footing.   Granting relief in favour of one class and denying same  or similar relief in favour of another class would result in  unequal treatments to equals and would infringe Article  14 of the Constitution. The action of the respondents,  therefore, deserves interference by this Court. We are unable to uphold the argument advanced  by the petitioners for more than one reason. It is no  doubt true, that Article 14 guarantees equality before the  law and confers equal 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. In our opinion, however, the basis  on which the argument proceeds is fallacious and ill- founded. It is well established that Article 14 seeks to  prevent or prohibit a person or class of persons from  being singled out from others situated similarly. It thus  prohibits discrimination or class legislation. It, however,  does not prohibit classification if otherwise it is legal,

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valid and reasonable. Before more than five decades, a Constitution  Bench of this Court was called upon to consider a  similar contention in the well known decision in State of  West Bengal v. Anwar Ali Sarkar & Another, (1952 SCR     284 : AIR 1952 SC 75). In that case, validity of certain  provisions of the West Bengal Special Courts Act, 1950  was challenged on the ground that they were  discriminatory and violative of Article 14 of the  Constitution. Dealing with the contention, S.R. Das, J.  (as His Lordship then was), made the following pertinent  observations which were cited with approval in several  cases;         "It is now well established that while  article 14 is designed to prevent a person or  class of persons from being singled out from  others similarly situated for the purpose of  being specially subjected to discriminating and  hostile legislation, it does not insist on an  "abstract symmetry" in the sense that every  piece of legislation must have universal  application. All persons are not, by nature,  attainment or circumstances, equal and the  varying needs of different classes of persons  often require separate treatment and, therefore,  the protecting clause has been construed as a  guarantee against discrimination amongst  equals only and not as taking away from the  State the power to classify persons for the  purpose of legislation. This classification may  be on different bases. It may be geographical or  according to objects or occupations or the like  Mere classification, however, is not enough to  get over the inhibition of the Article. The  classification must not be arbitrary but must  be rational, that is to say, it must not only be  based on some qualities or characteristics  which are to be found in all the persons  grouped together and not in others who are left  out but those qualities or characteristics must  have a reasonable relation to the object of the  legislation. In order to pass the test, two  conditions must be fulfilled, namely, that the  classification must be founded on an  intelligible differentia which distinguishes those  that are grouped together from others and that  that differentia must have a rational relation to  the object sought to be achieved by the Act.  The differentia which is the basis of the  classification and the object of the Act are  distinct things and what is necessary is that  there must be a nexus between them. In short,  while the Article forbids class legislation in the  sense of making improper discrimination by  conferring privileges or imposing liabilities upon  persons arbitrarily selected out of a large  number of other persons similarly situated in  relation to the privileges sought to be conferred  or the liability proposed to be imposed, it does  not forbid classification for the purpose of  legislation, provided such classification is not  arbitrary in the sense I have just explained."  (emphasis supplied)

Again, in Budhan Choudhry v. State of Bihar,

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[(1955) 1 SCR 1045 : AIR 1955 SC 191], after  considering earlier decisions, this Court stated; "It is now well-established that while article  14 forbids class legislation, it does not forbid  reasonable classification for the purposes of  legislation. In order, however, to pass the test  of permissible classification two conditions  must be fulfilled, namely, (i) that the  classification must be founded on an  intelligible differential which distinguishes  persons or things that are grouped together  from others left out of the group and (ii) that  that differentia must have a rational relation  to the object sought to be achieved by the  statute in question. The classification may be  founded on different bases; namely,  geographical, or according to objects or  occupations or the like. What is necessary is  that there must be a nexus between the basis  of classification and the object of the Act under  consideration." (emphasis supplied)

The principle laid down in Anwar Ali Sarkar and  Budhan Choudhry has been consistently followed and  reiterated by this Court in several subsequent cases.  [See Bidi Supply Co. v. Union of India & Ors., 1956 SCR  267 : AIR 1956 SC 479; Ram Krishna Dalmia v. Justice  Tendolkar,  1959 SCR 279 : AIR 1958 SC 538; V.C.  Shukla v. State (Delhi Administration); 1980 Supp. SCC  249 : AIR 1980 SC 1382; Special Courts Bill, Re, (1979) 1  SCC 380 : AIR 1979 SC 478 : (1979) 2 SCR 476; R.K.  Garg v. Union of India, (1981) 4 SCC 675 : AIR 1981 SC  2138; State of A.P. & Ors. v. Nallamilli Rami Reddi & Ors.,  (2001) 7 SCC 708 : AIR 2001 SC 3616; M.P. Rural  Agriculture Extension Officers Association v. State of M.P.  & Anr., (2004) 4 SCC 646 : AIR 2004 SC 2020]. In our judgment, therefore, it is clear that every  classification to be legal, valid and permissible, must  fulfill the twin-test, namely; (i)  the classification must be founded on an   intelligible differentia which must  distinguish persons or things that are  grouped together 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. In our considered opinion, classification between  in-service employees and retirees is legal, valid and  reasonable classification and if certain benefits are  provided to in-service employees and those benefits have  not been extended to retired employees, it cannot be  successfully contended that there is discrimination  which is hit by Article 14 of the Constitution. To us, 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 classification between defence  personnel and other than defence personnel is also  reasonable and valid classification.  Moreover, it is  clarified by the respondents in the counter-affidavit that  for medical facilities provided to retired civil servants,  there is also a scheme known as the Central Government

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Health Scheme (CGHS), which is again contributory.  Retired Central Government Servants who are members  of the scheme are covered by the said scheme and they  are provided medical services on payment of specified  amount under the scheme. We, therefore, see no  substance in the argument of the petitioners that the  impugned action in not providing full and free medical  facilities to retired defence personnel infringes Article 14  of the Constitution. We are also not impressed by the argument that all  medical benefits and facilities must be provided to ex- servicemen under the doctrine of ’legitimate expectation’.  The doctrine of ’legitimate expectation’ is a ’latest recruit’  to a long list of concepts fashioned by Courts for review  of administrative actions. No doubt, the doctrine has an  important place in the development of Administrative  Law and particularly law relating to ’judicial review’.  Under the said doctrine, a person may have reasonable  or legitimate 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 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. The expression ’legitimate expectation’ appears to  have been originated by Lord Denning, M.R. in the  leading decision of Schmidt v. Secretary of State, [(1969)  1 All ER 904 : (1969) 2 WLR 337 : (1969) 2 Ch D 149]. In  Attorney General of Hong Kong v. Ng Yuen Shiu, [(1983) 2  All ER 346 : (1983) 2 AC 629], Lord Fraser referring to  Schmidt stated; "The expectations may be based on some  statement or undertaking by, or on behalf of,  the public authority which has the duty of  making the decision, if the authority has,  through its officers, acted in a way that would  make it unfair or inconsistent with good  administration for him to be denied such an  inquiry. (emphasis supplied)

In such cases, therefore, the Court may not insist  an administrative authority to act judicially but may still  insist it to act fairly. The doctrine is based on the  principle that good administration demands observance  of reasonableness and where it has adopted a particular  practice for a long time even in absence of a provision of  law, it should adhere to such practice without depriving  its citizens of the benefit enjoyed or privilege exercised. We do not wish to burden our judgment with  several English, American and domestic decisions, since  the proposition of law has not been disputed by the other  side. In our opinion, however, in the instant case, the  doctrine of legitimate expectation has no application. It  is not even the case of the petitioners that certain  medical facilities 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

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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 has been improved.  They have, therefore, prayed that medical facilities which  were not provided in past may also be provided now to  retired defence personnel. Similarly, medical facilities  should also be extended for serious and terminal  diseases.  The doctrine of legitimate expectation, in the  fact situation, therefore, cannot be invoked by the  petitioner in the case on hand. We are equally unimpressed by the submission of  the learned counsel to issue directions or guidelines to  ’fill in gaps’ in the exercise of plenary powers.  Undoubtedly, in absence of legislative provisions or  administrative instructions governing the field, this court  may, in appropriate cases, issue necessary directions as  has been done in several cases. [See Delhi Judicial  Service Association v. State of Gujarat, (1991) 4 SCC 106  : AIR 1991 SC 2106 : (1991) 3 SCR 936; D.K. Basu v.  State of West Bengal, (1997) 1 SCC 416 : AIR 1997 SC  610; Visakha v. State of Rajasthan, (1997) 6 SCC 241 :  AIR 1997 SC 3011]. In the instant case, however, a  scheme providing medical facilities to ex-servicemen has  been framed. It has been decided by the Central  Government to extend medical facilities to retired  defence personnel on the basis of ’one time contribution’  which is legal, proper and reasonable. In the  circumstances, the ratio laid down by the Supreme  Court in the above cases does not apply and no  directions need be issued to the respondents. At the same time, however, 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 under-estimated. The petitioners  have rightly stated that they have served in the Army, Air  Force and Navy of the Union of India during cream  period of youth putting their lives to high risk and  improbabilities. As a mark of respect and 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. It would be appropriate to quote here an epitaph  from the Kohima War Cemetry which conveys eloquently  what our Soldiers, Sailors and Airmen are cheerfully  willing to sacrifice their lives; "When you go home,   Tell them for us;   For your to-morrow,   We gave our to-day."

The petitioner has made grievance that during war  and serious situations, defence personnel are  remembered but as soon as grave situation is over, they  are forgotten and ignored. We are reminded what Francis  Quarrels said;  "Our Gods and Soliders we alike adore,   At the time of danger, not before;   After deliverance both are alike requited,

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 Our Gods forgotten and our Soldiers slighted".

Before more than two decades when the  respondents appointed a High Level Committee under  the Chairmanship of Shri K.P. Singh Deo, Minister of  State, Ministry of Defence to consider problems of ex- servicemen, it highlighted the difficulties experienced by  ex-servicemen in the light of hard and strenuous work  undertaken by them and exigencies of service in which  they had to discharge their duties. The Committee, while  submitting the report, observed in the Foreword\027 Our Armed Forces have won world wide  renown for their valour, dedication and  devotion. The achievements of the Armed  Forces in varying roles since Independence  are a matter of pride for all of us in the  Country and that of envy of other Nations.  Men from all castes, creeds, religions and  from all parts of India join the Armed Forces  and their integration as a secular  homogeneous and dedicated team is  remarkably total.

The Armed Forces personnel have sterling  qualities of head and heart, courage,  discipline, loyalty and implicit obedience to  orders. They are the guardians of the safety  and honour of the Country and are ever  prepared to sacrifice their lives to preserve the  freedom and sovereignty of the Country. In  addition to their preparedness for war, during  peace time, our Armed Forces have always  risen to the occasion to assist the  Administration during natural calamities and  internal unrest. The sacrifices made by the  personnel of the Armed Forces from 15th  August, 1947 to date have been so  innumerable that they can best be described  by the following quotation of Sir Winston  Churchill who had on 20th August, 1940 said:

"Never in the field of human conflict was  so much owed by so many to so few"

The Committee was conscious of the ground reality  that the personnel of Armed Forces are the only  Government employees who retire at a relatively younger  age to keep a youthful profile due to the arduous nature  of their duties in hazardous and inhospitable terrain. It  stated that, almost all ex-servicemen, whose retirement  age depending on rank, vary from 35 to 54 years, require  help and assistance for resettlement, rehabilitation and  adjustment in the civil stream. They require a second  career as they are comparatively young and active and  their responsibilities and obligations are at the peak  when they are compulsorily retired. Having given the  best years of their lives for the safety, honour and  integrity of the country, it becomes a national obligation  to get them resettled and rehabilitated. The Committee  noted that the problems of ex-servicemen had, for a long  time, been engaging the attention of both the Houses of  Parliament as well as the Government and a cause of  concern to Prime Minister Smt. Indira Gandhi who had a  special love and affection for the Armed Forces. Keeping  in view the magnitude of the problem, the High Level

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Committee had been set up for the first time after  independence to go into various problems of ex- servicemen. The Committee was also mindful that  defence and national development were, to a great  extent, interdependent. The Committee quoted Pandit  Jawaharlal Nehru, first Prime Minister of India, who,  while inaugurating the National Defence College at Delhi  as early as in 1960, stated; "Defence itself is not an isolated matter now. It  is intimately connected with the economic  aspect, industrial aspect and many other  aspects in the country\005 India today has  become positively and actively defence  conscious, more than at any time since  independence. Our desire is to continue to live  peacefully and co-operatively with all our  neighbours. Nevertheless, no defence  apparatus can exist in a purely idealistic way.  It has to be very realistic and remain prepared  for any emergency". (emphasis supplied)

The Committee considered several problems and  prepared a detailed report. Regarding medical facilities, it  observed: "Medical Facilities

12.9            Prior to the issue of Government of  India, Ministry of Defence letter No.  16307/DGCAFMS/DG\0273(A)/417\027S/D(AG-1)  dated 14th October, 1966, ex-servicemen and  their families were not entitled to receive any  treatment from Service hospitals except to a  very limited extent as follows:-

(a) Free medical treatment for specific  disabilities in respect of ex-servicemen in  receipt of disability pension.

(b) Other Armed Forces pensioners could be  admitted to Service hospitals only if  accommodation was available and admission  was sanctioned by the Officer Commanding  Station/Administrative Authority. Specified  hospital stoppages were to be paid. No out- patient treatment was available to such  pensioners.

(c) Families of ex-servicemen were not entitled  to any treatment\027out-door or indoor from  Service hospitals.

12.10   The Government letter cited in para  12.9 above was instrumental in making very  liberal concessions towards the treatment of  ex-servicemen and their families from Service  sources. Under the provisions, ex-service  pensioners and their families and the families  of deceased service personnel drawing pension  of some kind were entitled to free out-patient  treatment including supply of free medicines  from the nearest military hospital. Sanction  was also accorded for these personnel for  providing in-patient treatment in Service  hospitals subject to the following conditions:-

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(a) That the disease is not incurable.

(b) That the hospital accommodation could be  made available from within the authorized  number of beds and without detriment to the  needs of serving personnel.

(c) That the treatment will be limited to the  facilities locally available.

(d) No conveyance will be provided for journeys  from the residence to the hospital and back;  and

(e) No special nursing would be admissible.

It is specifically laid down in this Government  letter that the above concessions will not  include treatment for pulmonary tuberculosis,  leprosy, mental diseases, malignant diseases or  any other disease for which treatment is not  ordinarily available from the local military  sources.

12.11 Liberalisation Proposals : due to the  increased awareness and phenomenal increase  in the number of ex-servicemen at the rate of  60,000 per annum, more and more ex- servicemen are now coming to Service hospitals  for treatment. To meet the requirement of  giving adequate treatment to the ex-servicemen  reporting at the Service hospitals, the following  additional facilities need to be provided:-

(a) Sanction of 1155 beds exclusively for the ex- servicemen pensioners and entitled  dependents.

(b)  To treat ex-servicemen as out-patients and  in-patients, additional staff would also be  required as under:-

       (i)     Officers                                33         (ii)    Nursing Officers                74         (iii)   Other Ranks                   312         (iv)    Civilians                             211

12.12   Civil Hospitals : Ex-servicemen are  living in villages, towns and cities throughout  the country. The 31 military hospitals are  situated in military stations. The primary aim  of these hospitals is to provide medical cover to  the serving personnel. On account of their  location, only those ex-servicemen and entitled  dependents within close proximity to these  stations are likely to avail of the facilities in  these military stations. In the case of most  other ex-servicemen they have to perforce  depend upon the civil hospitals in the districts.  Hence, States/Union Territories should provide  medical assistance to the ex-servicemen in  their civil hospitals free of charge, for example  as provided in Karnataka. In Chapter X, certain  recommendations have been made for

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provision of funds from the Seventh Plan  expenditure for the construction of wards for  ex-servicemen in hospitals. This should also be  done in civil hospitals particularly in States  where there are a large number of ex- servicemen."

The Committee then made certain  recommendations, inter alia, observing that the existing  facilities in the Military hospitals should be enhanced for  ex-servicemen and their entitled dependents in a phased  manner in the next few years. As already noted earlier, in 1983, Regulations for  the medical services of the Armed Forces were framed  superseding the Regulations for the medical services of  the Armed Forces, 1962. Regulation 296 providing  "Entitlement to medial attendance" is relevant and the  material part thereof reads thus: 296. The classes noted below are entitled to medical  attendance as defined in paras 284, 285 and 286 to the extent  shown against each:\027 Classes Medical attendance Admissible Remarks (a) (b) (c) A. \005 \005 \005 \005 B. \005 \005 \005 \005 C. \005 \005 \005 \005 D. \005 \005 \005 \005 E. \005 \005 \005 \005 F. (i) Ex-service  personnel in receipt  of a disability  pension and Ex- servicemen of the  Indian State Forces  in receipt of a  disability pension  from the Defence  Services Estimates

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for a disability  accepted as attribu- table to or aggra- vated by service  with the Indian  Armed Forces. As out-patient or in  a hospital. (a) Treatment is  authorized only for  the disabilities for  which pension has  been granted  excluding cases of  Pulmonary Tuber- culosis, Leprosy  and mental  diseases and  patients requiring  any special  treatment not  ordinarily available  from service  sources, such as  radiotherapy.

(b) Admission may  be authorized for  the purpose of  observation to  enable the medical  authorities to  arrive at a correct  assessment of the  degree of  disability.

(ii) Personnel of F(i)  above, who have  been invalidated out  of service on  account of a dis- ability accepted as  attributable to/  aggravated by  military service but  who are not in  receipt of a  disability pension  for the reason that  the disability is less  than 20% and  individuals whose  case attributability  has been conceded  by the Medical  Board but a final  decision in the  matter ha snot been  reached. As out-patient or in  a hospital, if  accommodation is  available.

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(a) As in F(i) above.

(b) Treatment will  be discontinued  immediately in  respect of cases  under conside- ration if the final  decision is against  the findings of the  Medical Board.

(iii) Ex-service  personnel invalided  out of service on  account of pulmo- nary tuberculosis  which has been  accepted as attribu- table to/aggravated  by service and for  which disability  pension has been  granted. (i) Domiciliary  treatment as out  patient.

(ii) May be admitted  in Military Hospital  (Cardio Thoracic  Centre), Pune, on  the recommen- dation of OC of an  armed forces  hospital, if a bed  out of the ten T.B.  beds reserved for  this category of  personnel is  available. On relapse of the  disease.

This concession is  not an entitlement  for indoor hospital  treatment for T.B.  from military  sources for ex- servicemen. G. \005 \005 \005 \005 H. \005 \005 \005 \005 I. \005 \005

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\005 \005 J. \005 \005 \005 \005 K. \005 \005 \005 \005 L. \005 \005 \005 \005 M. \005 \005 \005 \005 N. \005 \005 \005 \005      O. Ex-Service pensioners  and their families of  deceased service  personnel drawing  pension of some kind  (i) Free out patient  treatment in the  nearest Armed  Forces Hospital  including the supply  of medicine  necessary for their  treatment.

(ii) In-patient  treatment in Armed  Forces Hospital  subject to the  following conditions:

a) That the disease is  not incurable.

b) The hospital  accommodation  could be made  available within the  authorized number  of beds and without  detriment to the  needs of service  personnel.

c) That the treatment  will be limited to the  facilities available  locally.

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d) No conveyance will  be provided for  journeys from the  residence to the  hospital and back.

e) No special nursing  would be admissible.

f) for in patient  treatment, hospital  stoppages will be as  para 16 of Appendix  5.

The scope of the  above concessions  will not include  treatment for  pulmonary tuber- culosis, leprosy,  mental disease,  malignant disease  or any other  disease for which  treatment is not  ordinarily available  from local military  sources.

(ii) These conce- ssions will not be  admissible to the  service pensioners  who are re- employed in  Government/Semi- Government  departments or  other public or  private Sector  undertaking which  provides medical  facilities to their  employees.

iii) for this purpose  family includes  wife and un- married children /  step children /  adopted children  under 18 years of  age are dependent  on the pensioners.

Note : Retired officers of the Armed Forces including  M.N.S. officers and retired JCOs, WOs, OR and NcsE or  equivalents in the Navy and Air Force in receipt of  service pension         may be treated in a hospital if  accommodation is available and admission is  sanctioned by the O.C. Station/administrative  authority. They are not entitled to special nursing in  hospital.

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In the affidavit in reply filed by the Union of India,  it was stated that under the Group Insurance Scheme  and from the Armed Forces Flag Day Fund, medical  treatment has been provided to ex-servicemen. On the  recommendation of Fifth Pay Commission, the  Government had sanctioned a fixed medical allowance of  Rs.100 per month to those ex-servicemen and their  families who reside in the area where Armed Forces  hospitals/clinics are not available. Other facilities were  also extended to them. It was stated that in respect of  serious diseases i.e. diseases affecting heart\027 angiography, open heart surgery, valve replacement,  pacemaker implant, bypass surgery and repeat  angioplasty, cancer, etc. facilities are now available.  Substantial financial assistance is provided to ex- servicemen and their dependents for treatment in several  hospitals for bypass surgery (including preliminary tests  like angiography, angioplasty, angiography),  kidney/renal transplantation, cancer/spastic paraplegic  treatment, coronary artery surgery, open heart surgery,  valve replacement and pacemaker implant. We have been taken through the contributory  scheme of 2002. It substantially covers extensive medical  facilities to be provided to ex-servicemen. A  communication dated December 30, 2002 by  Government of India, Ministry of Defence to the Chief of  Army Staff, Navy Staff and Air Staff states that  Government has sanctioned Ex-Servicemen Contributory  Health Scheme (ECHS). The communication inter alia states as under: "(a) ECHS would be a contributory scheme. On  retirement, every Service personnel will  compulsorily become a member of ECHS by  contributing his/her share and the Scheme  would be applicable for life time. Similarly ex- servicemen who have already retired can  become members by making a one time  contribution. There would be no restriction on  age or medical condition. The contribution will  be according to the rates prescribed for CGHS  pensioners as per Appendix-A attached.

(b) Retired personnel joining the scheme will  forfeit the medical allowance of Rs.100/-  presently admissible to them and those who do  not join the scheme would continue getting  medical allowance as hithertofore. Such  persons would not be entitled to any medical  facility from Armed Forces Clinics/Hospitals or  Polyclinics set up under the scheme."

Para 2 (c) of the said letter states that 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,  the details of which have been given in the letter. 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. It then  prescribes rates of contribution in Appendix-A which are  as under: RATES OF CONTRIBUTION

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(a)     Pension upto Rs.3000    Rs.       1800 (b)     Pension between Rs.3001-6000    Rs.       4800 (c)     Pension between Rs.6001-10000   Rs.       8400 (d)     Pension between Rs.10001-15000  Rs.     12000 (e)     Pension of Rs.15000 and above   Rs.     18000                          From the above discussion as well as the relevant  provisions of the scheme, we are satisfied that necessary  steps have been taken by the respondents. 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. It is also not  in dispute that this would apply only to those defence  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. The larger question raised by various associations  is that to get free and full medical aid is their  fundamental right and is corresponding duty of the  Government. The respondents, hence can neither deny  that right nor can ask ex-servicemen to pay contribution  amount for getting medical services. To buttress the contention, the learned counsel  invited our attention to several decisions of this court. It  is not necessary to deal with all those cases. We may,  however, consider some of them which are relevant. Strong reliance was placed on a decision of three  Judge Bench in Consumer Education & Research Centre.  In that case, the Court dealt with the problem of  occupational health hazards and diseases sustained by  the workmen employed in asbestos industries. The Court  observed that the dangers and diseases attributable to  personnel working in asbestos industries were very  serious apart from cancer and respiratory disorders. It  was held that right to health and medical aid of workers  during service and thereafter, is a fundamental right of  workers. According to this Court, it can issue directions  in an appropriate case to the State or its  instrumentalities or even private employers to make the  right to life meaningful and to pay compensation to  affected workmen. It also held that the defence of  ’sovereign immunity’ would not be available to the State  or its instrumentalities where fundamental rights are  sought to be enforced. Relying on several previous  judgments, this Court held that right to life would mean  meaningful and real right to life. It would include right to  livelihood, better standard of living in hygienic conditions  at the work place and leisure. Speaking for the Court, K. Ramaswamy, J.  observed in para 25; "Therefore, we hold that right to health,  medical aid to protect the health and vigour of  a worker while in service or post retirement is  a fundamental right under Article 21, read  with Articles 39(e), 41, 43, 48A and all related  to Articles and fundamental human rights to  make the life of the workman meaningful and  purposeful with dignity of person." (emphasis supplied)

Reliance was also placed on CESC Ltd. v. Subhash  Chandra Bose, [1992) 1 SCC 441 : AIR 1992 SC 573],  wherein His Lordship (K. Ramaswamy, J.) held that right  to health of a worker is covered by Article 21 of the

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Constitution. It was also indicated that health does not  mean mere absence of sickness but would mean  complete physical, mental and social well-being.  "Facilities of health and medical care generate devotion  and dedication to give the workers’ best, physically as  well as mentally, in productivity. It enables the worker to  enjoy the fruit of his labour, to keep him physically fit  and mentally alert for leading a successful economic,  social and cultural life. The medical facilities are,  therefore, part of social security and like gift-edged  security, it would yield immediate return in the  increased production or at any rate reduce absenteeism  on the ground of sickness." Reference was made to Bandhua Mukti Morcha v.  Union of India, [(1984) 3 SCC 161 : AIR 1984 SC 802]  wherein Bhagwati, J. (as His Lordship then was)  referring to Francis Coralie Mullin v. Administrator, Union  Territory of Delhi, [(1981) 1 SCC 608 : AIR 1981 SC 746]  stated;         "It is the fundamental right of every one  in this country, assured under the  interpretation given to Article 21 by this Court  in Francis Mullen’s case, to live with human  dignity, free from exploitation. This right to  live with human dignity enshrined in Article  21 derives its life breath from the Directive  Principles of State Policy and particularly  Clauses (e) and (f) of Article 39 and Articles 41  and 42 and at the least, therefore, it must  include protection of the health and strength  of workers men and women, and of the tender  age of children against abuse, opportunities  and facilities for children to develop in a  healthy manner and in conditions of freedom  and dignity, educational facilities, just and  humane conditions of work and maternity  relief. These are the minimum requirements  which must exist in order to enable a person  to live with human dignity and no State  neither the Central Government nor any State  Government-has the right to take any action  which will deprive a person of the enjoyment  of these basic essentials. Since the Directive  Principles of State Policy contained in Clauses  (e) and (f) of Article 39, Article 41 and 42 are  not enforceable in a court of law, it may not  be possible to compel the State through the  judicial process to make provision by  statutory enactment or executive fiat for  ensuring these basic essentials which go to  make up a life of human dignity but where  legislation is already enacted by the State  providing these basic requirements to the  workmen and thus investing their right to live  with basic human dignity, with concrete  reality and content, the State can certainly be  obligated to ensure observance of such  legislation for inaction on the part of the State  in securing implementation of such legislation  would amount to denial of the right to live  with human dignity enshrined in Article 21,  more so in the context of Article 256 which  provides that the executive power of every  State shall be so exercised as to ensure  compliance with the laws made by Parliament

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and any existing laws which apply in that  State."

The counsel also relied upon Paschim Banga Khet  Mazdoor Samity v. State of West Bengal, [(1996) 4 SCC  37 : AIR 1996 SC 2426]. That case related to failure on  the part of Government hospitals to provide timely  emergency medical treatment to persons in serious  conditions. Relying on Khatri (II) v. State of Bihar, [(1981)  1 SCC 627], this Corut said;         "It is no doubt true that financial  resources are needed for providing these  facilities. But at the same time it cannot be  ignored that it is the Constitutional obligation  of the State to provide adequate medical  services to the people. Whatever is necessary  for this purpose has to be done. In the context  of the constitutional obligation to provide free  legal aid to a poor accused, this Court has  held that the State cannot avoid its  constitutional obligation in that regard on  account of financial constraints. (See : Khatri  (II) v. State of Bihar (1981) 1 SCC 627]. The  said observations would apply with equal, if  not greater, force in the matter of discharge of  constitutional obligation of the State to  provide medical aid to preserve human life. In  the matter of allocation of funds for medical  services the said constitutional obligation of  the State has to be kept in view. It is  necessary that a time-bound plan for  providing these services should be chalked  out keeping in view the recommendations of  the Committee as well as the requirements for  ensuring availability of proper medical  services in this regard as indicated by us and  steps should be taken to implement the same.  The State of West Bengal alone is a party to  these proceedings. Other States, though not  parties, should also take necessary steps in  the light of the recommendations made by the  Committee, the directions contained in the  Memorandum of the Government of West  Bengal dated August 22, 1995 and the further  directions given herein".

In Vincent Panikurlangara v. Union of India, [(1987)  2 SCC 165 : AIR 1987 SC 990],the issue related to  manufacturing, selling and distributing approved  standard of drugs and banning of injurious and harmful  medicines. In the background of that question, this  Court held right to maintenance and improvement of  public health as one of the fundamental rights falling  under Article 21 of the Constitution. Quoting a well-known adage "Sharirmadhyam  khalu dharma shadhanam" (healthy body is the very  foundation of all human activities), the Court observed  that\027 "\005maintenance and improvement of public  health have to rank high as these are  indispensable to the very physical existence of  the community and on the betterment of  these depends the       building of the society of  which the  Constitution  makers  envisaged.  Attending to public health, in our opinion,

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therefore, is of high priority--perhaps the one  at the top".

In National Textile Workers’ Union v. P.R.  Ramakrishnan, [(1983) 1 SCC 228 : AIR 1983 SC 75],  placing emphasis on needs of changing society and  liberal construction of laws conferring benefits on weaker  classes, Bhagwati J. (as His Lordship then was) said;         "We cannot allow the dead hand of the  past to stifle the growth of the living present.  Law cannot stand still; it must change with  the changing social concepts and values. If  the bark that protects the tree fails to grow  and expand alongwith the tree, it will either  choke the tree or if it is a living, tree, it will  shed that bark and grow a new living bark for  itself. Similarly, if the law fails to respond to  the needs of changing society, then either it  will stifle the growth of the society and choke  its progress or if the society is vigorous  enough, it will cast away the law which  stands in the way of its growth. Law must  therefore constantly be on the move adopting  itself to the fast changing society and not lag  behind. It must shake off the inhibiting legacy  of its colonial past and assume a dynamic role  in the process of social transformation. We  cannot therefore mechanically accept as valid  a legal rule which found favour with the  English courts in the last century when the  doctrine of laissez faire prevailed. It may be  that even today in England the courts may be  following the same legal rule which was laid  down almost a hundred years ago, but that  can be no reason why we in India should  continue to do likewise. It is possible that this  legal rule might still be finding a place in the  English text books because no case like the  present one has arisen in England in the last  30 years and the English courts might not  have had any occasion to consider the  acceptability of this legal rule in the present  times. But whatever be the reason why this  legal rule continues to remain in the English  text books, we cannot be persuaded to adopt  it in our country, merely on the ground that it  has been accepted as a valid rule in England.  We have to build our own jurisprudence and  though we may receive light from whatever  source it comes, we cannot surrender our  judgment and accept as valid in our country  whatever has been decided in England".

It cannot be gainsaid that 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 unconstitutional and ultra vires Part III of  the Constitution. Before more than hundred years, in  Munn v. Illinois, (1876) 94 US 113 : 24 Law Ed 77, Field,  J. explained the scope of the words "life" and "liberty" in  5th and 14th Amendments to the U.S. Constitution and  proclaimed;         "By the term "life" as here used something  more is meant than mere animal existence. The

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inhibition against its deprivation extends to all  these limits and faculties by which life is  enjoyed. The provision equally prohibits the  mutilation of the body or amputation of an  arm or leg or the putting out of an eye or the  destruction of any other organ of the body  through which the soul communicates with  the outer world....... by the term liberty, as  used in the provision something more is  meant than mere freedom from physical  restraint or the bonds of a prison."  (emphasis supplied)

The above observations have been quoted with  approval by this Court in Kharak Singh v. State of U.P.  (1964) 1 SCR 332 : AIR 1963 SC 1295. A similar view  thereafter has also been taken in several cases, viz.,  Prithi Pal Singh v. Union of India, (1982) 3 SCC 140 : AIR  1982 SC 1413; A.K. Roy v. Union of India, (1982) 1 SCC  271 : AIR 1982 SC 710; Olga Tellis v. Bombay Municipal  Corporation, (1985) 3 SCC 545 : AIR 1986 SC 180; State  of H.P. v. Umed Ram Sharma, (1986) 2 SCC 68 : AIR  1986 SC 847; Prabhakaran v. State of Tamil Nadu, (1987)  4 SCC 238 : AIR 1987 SC 2117; A.R. Antulay v. R.S.  Nayak, (1988) 2 SCC 602 : AIR 1988 SC 1531; Vikram  Deo Singh v. State of Bihar, 1988 Supp SCC 734 : AIR  1988 SC 1782; Parmanand Katara v. Union of India,  (1989) 4 SCC 286 : AIR 1989 SC 2039; Kishan Pattnayak  v. State of Orissa, 1989 Supp (1) SCC 258 : AIR 1989 SC  677; Shantistar Builders v. Narayan, (1990) 1 SCC 520 :  AIR 1990 SC 630; Chhetriya Pradushan Mukti Sangharsh  Samiti v. State of U.P., (1990) 4 SCC449 : AIR 1990 SC  2060; Charan Lal Sahu v. Union of India, (1990) 1 SCC  613 : AIR 1990 SC 1480; Delhi Transport Corporation v.  Delhi Transport Corporation Mazdoor Congress, 1991  Supp (1) SCC 600(735) : AIR 1991 SC 101; Kapila  Hingorani v. State of Bihar, (2003) 6 SCC 1; District  Registrar & Collector, Hyderabad v. Canara Bank, (2005)  1 SCC 496]. The stand of the Union of India, however, is that to  provide medical facilities to all defence personnel in  service as well as retired, necessary steps have been  taken. So far as ex-servicemen are concerned,  Contributory Scheme of 2002 provides for medical  services by charging ’one time contribution’ on the basis  of amount of pension received by an employee. The  amount ranges from Rs.1,800 to Rs.18,000 which  cannot be said to be excessive, disproportionate or  unreasonably high. The question, therefore, is whether  the State can ask the retired defence personnel to pay an  amount of contribution for getting medical facilities by  becoming a member of such scheme. In our opinion, such a contributory scheme cannot  be held illegal, unlawful or unconstitutional. Ultimately,  the State has to cater to the needs of its employees\027past  and present. It has also to undertake several other  activities as a ’welfare’ State. In the light of financial  constraints and limited means available, if a policy  decision is taken to extend medical facilities to ex- defence personnel by allowing them to become members  of contributory scheme and by requiring them to make  ’one time payment’ which is a ’reasonable amount’, it  cannot be said that such action would violate  fundamental rights guaranteed by Part III of the  Constitution.

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In State of Punjab v. Ram Lubhaya Bagga, [(1998) 4  SCC 117 : AIR 1998 SC 1703], a three Judge Bench of  this Court had an occasion to consider the question of  change of policy in regard to reimbursement of medical  expenses to its employees. Referring to earlier decisions,  the Bench took note of ground reality that no State has  unlimited resources to spend on any of its projects.  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. "This principle equally applies when there is    any constraint on the health budget on  account of financial stringencies."

We are in agreement with the above view. In our  considered opinion, though the right to medical aid is a  fundamental right of all citizens including ex-servicemen  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. Ex- servicemen who are getting pension have been asked to  become members of ECHS by making ’one time  contribution’ of reasonable amount (ranging from  Rs.1,800/- to Rs.18,000/-). To us, this cannot be held  illegal, unlawful, arbitrary or otherwise unreasonable. Observations made by this Court in the cases relied  upon by the petitioner and intervenors including  Consumer Education & Research Centre referred to  earlier, must be read as limited to the facts before the  court and should not be understood to have laid down a  proposition of law having universal or general  application irrespective of factual situation before the  Court. To us, the policy decision in formulating  Contributory Scheme for ex-servicemen is in accordance  with the provisions of the Constitution and also in  consonance with the law laid down by this Court. We see  no infirmity therein. We, therefore, hold that getting free  and full medical facilities is not a part of fundamental  right of ex-servicemen. We must, however, hasten to add that we are not  unmindful or oblivious of exemplary and extremely  useful services rendered by defence personnel. We are  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. We are also aware that they are exposed to  harsh terrain and discharge their duties in hostile  conditions of life. For days and months, they are at  places covered by snow or in desert or in wild forests.  They are unable to come in contract with their family  members, kiths 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  1, 1996. Taking into account all these facts and the  circumstances in their entirety, on March 8, 2006, we  passed the following order:

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       "Mr. K. S. Bhati, learned counsel   appearing    for Petitioner No. 1, commenced   his    submissions   at   10.30   a.m. and    concluded   at   2.35   p.m. Thereafter, Mr.    J.S. Manhas,   learned   counsel   appearing    for   Petitioner Nos. 2 and 3, made   his    submissions   till   3.00   p.m.     Mr.   Ravi P.  Mehrotra, learned counsel appearing for the  Union of India, made his submissions till 3.25  p.m.  Mr. K.S. Bhati, learned counsel,  thereafter rejoins and concluded at 3.30 p.m.

       Hearing concluded.

               We   have   heard   the   learned    counsel   for   the   parties   on   the questions    of   law,   particularly   on   the   aspect   of    the   correctness   of   broad observations    made   in   the   decision   of   a   three-Judge    Bench   in   Consumer Education   Research    Centre   &   Ors.  vs.  Union   of   India   &    Ors.  (1995   (3) S.C.C.43).   

               During the course  of hearing  with   the assistance of  the  learned counsel,   we    have perused the Ex-servicemen    Contributory   Health   Scheme [for short,  "E.C.H.S."] dated 30th  December, 2002.   The  contribution  to be made by an ex-serviceman  so as to avail the benefit of health scheme  under the   E.C.H.S.   is   one-time   payment    ranging   from   Rs.1800/-   to   Rs.18,000/-  depending upon the amount of pension drawn  by him.  In this writ petition, we   are    concerned   with   the   cases   of   those   ex- servicemen   who   have   retired before 1st   January, 1996.   It is evident  that this class  of ex-servicemen is a diminishing category.   The Government of India, Ministry of Defence,  shall consider,   without   it   being  treated   as   a  precedent,  the  question  of   granting  the waiver  of  contribution required to be  made under the E.C.H.S. by the ex- servicemen of the category with which we are  concerned, i.e., those who have   retired    prior   to   1st  January,   1996,   having    regard   to   the   contribution that   may    have   been   made   by   them   in   the    service   of   the   nation   and particularly    considering   that   they,   while   in   service,    were   not   making   any payment   so   as    to   enjoy   the   benefit   of   medical   care.      Alternatively,   the Government can also  consider making payment on behalf of those  who may be   interested   in   availing   the    benefits   under   the   E.C.H.S.   In   case   of    any difficulty in granting this one-time  concession, the Government shall file an  affidavit within a period of four weeks, placing  on record the approximate amount which may  have to be waived or contributed by the  Government on behalf   of   such   category    of   ex-servicemen.     Further,   if   the    Government decides to waive it or pay it,  without it being treated as a precedent, in

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that event, the amount may not be  incorporated in the affidavit.   The waiver or  payment would be only in respect of those  who voluntarily wish to join the E.C.H.S.

Judgment is reserved".

In the above order, we suggested that the  Government may waive payment of contribution charges  or may consider to pay requisite ’one time contribution’  on behalf of the employees who may be interested in  availing the benefits of ECHS. We also indicated that in  case of any difficulty in granting this one time  concession, the Government may file an affidavit within  a period of four weeks placing on record the approximate  amount which may have to be waived or contributed by  the Government on behalf of such category of ex- servicemen. No such affidavit has been filed by the  Government so far. It can, therefore, safely be presumed  that the Government has no difficulty in waiving/paying  contribution as a ’one time measure’ on behalf of ex- defence personnel who retired prior to January 1, 1996  and wish to avail benefits of ECHS. Obviously, the said  question will not arise in future. We, therefore, dispose of  the matter in the light of our earlier order and the  observations made therein. For the reasons aforesaid, the writ petition deserves  to be partly allowed. Keeping in view totality of facts and  circumstances, in our considered view, the ends of  justice would be met if we hold the Ex-servicemen  Contributory Health Scheme, 2002 (ECHS) to be legal,  valid, intra vires and constitutional but direct 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. The writ  petition is accordingly disposed of. Rule is made absolute  to the extent indicated above. In the facts and  circumstances, however, parties are directed to bear  their own costs.