M.S. Ramachandra Rao, CJ
1. The question in this Writ petition relates to claim for medical reimbursement by a retired Judge of this High Court and his spouse for treatment
undergone by them at Mumbai and for travel expenses.
2. The petitioner had served as a Judge of this High Court w.e.f. 30.09.1995, when he was transferred to the High Court of Jammu & Kashmir in
December, 1997.
3. He was later re-transferred to this High Court in June, 2002 and demitted office on 04.10.2005.
4. He subsequently came to be appointed as President of the H. P. State Consumer Disputes Redressal Commission, Shimla, on 05.10.2005 and held
the said office till 04.10.2010.
5. In September 2016, when the petitioner went to Mumbai, he suffered from illness, for which, he contacted the Apollo Hospital, New Mumbai.
Certain tests were performed and he was informed that he needed urgent surgery of his spine and that if he did not undergo the surgery, he will lose
control over his bladder and bowel.
6. In view of the said emergent situation, he underwent surgery on 14.09.2016, for which he was an indoor patient from 12.09.2016 till 21.09.2016.
7. At the same time, petitioner’s spouse also had to undergo treatment for back pain in the same hospital, while the petitioner was admitted at
Navi Mumbai.
8. Vide Annexure P-1, claim was raised by the petitioner for himself and for his spouse for Rs.5,37,941/-, including air-fare amount of Rs.37,518/-, for
having undertaken treatment at Apollo Hospital at Mumbai, which was under an emergency.
9. The High Court of Himachal Pradesh referred his case to the State Government of Himachal Pradesh for allowing full reimbursement including air-
fare followed by reminders dt. 29.07.2014, 14.09.2017 & 20.11.2017, respectively.
10. The High Court on 08.06.2018, remitted Rs.2,14,977/- against verified bills of Rs.4,52,607/-.
11. Petitioner addressed a letter on 05.06.2018, calling upon the High Court to provide details of deduction made item-wise with reasons in a tabulated
form.
12. Petitioner on 09.08.2019, requested the High Court to reimburse the balance amount also, in addition to the partial payment of Rs.2,14,977/-.
13. On 19.11.2020, petitioner wrote to the High Court highlighting his grievances for reimbursement of his claim regarding his treatment and requested
the High Court to take appropriate steps in that direction.
14. This was reiterated in another letter sent by him on 08.07.2021 to the High Court, claiming balance sum of Rs.2,37,680/ - along with travel
expenses. He sought payment of the said amount with 12% interest per annum.
15. Petitioner contended that denying full reimbursement of medical claim for treatment which was undertaken by the petitioner and his spouse in a
compelling emergency is arbitrary, unlawful, unfair, discriminatory and violative of Articles 14 & 21 of the Constitution of India.
Reply of Respondent no.1
16. The State Government filed reply, opposing the claim for full reimbursement.
17. It contended that it had no role in disbursing the amount as the petitioner was governed by the Policy of the Department of Health. Clauses 9.9 &
10.2 of the said Policy issued on 21.6.2008 are relied upon, which state as under:-
 “9.9. In case treatment is taken in a non-empanelled institution in emergency, reimbursement shall be restricted to the rates of IGMC
Shimla/Government Dental College, Shimla. In case the procedure/treatment is not available in the IGMC, Shimla/Government Dental College, Shimla
the rates of PGIMER Chandigarh/AIIMS, Delhi/CGHS or actual whichever is least shall apply. In case there are no such rates the CGHS rates or
actual whichever is less shall apply.
10.2 In case of emergency, the treatment can be taken in a non-empanelled institution without referral. However, the question of emergency will be
decided by the A.D. concerned and reimbursement shall be restricted as per this Policy.â€
18. It was denied that the petitioner was treated in an emergency as he had gone to Mumbai on his own on 09.09.2016 and was admitted on
12.09.2016.
Rejoinder of petitioner
19. Rejoinder was filed by the petitioner refuting the said contentions.
20. Petitioner reiterated that even if he had gone to Mumbai for a checkup on the advise of his Doctor, the Doctor’s advise turned out to be an
emergency and he needed to urgently undergo surgery of his spine, which was an emergency as per Certificate dt. 13.01.2018 issued to him, and so
the respondents cannot deny him reimbursement, and that he should be fully reimbursed for the treatment.
21. It is stated that the High Court had called upon the State Government to allow full reimbursement of the expenses, including air-fare incurred by
the petitioner and his spouse for the treatment undertaken in an emergency in the non-empanelled hospital at Mumbai in relaxation of all existing
Rules/ Instructions, but though the 1st respondent granted permission on 25.04.2018 for the petitioner undergoing treatment in a non-empanelled
hospital, i.e. Apollo Hospital, Mumbai, it had restricted the reimbursement in terms of Paras 9.9 & 10.2 of the Policy.
22. It is further stated that as per Para 10.3 of Notification, T.A. & Attendant will be allowed only in case where the patient is referred for treatment
out of State by the Medical Officer of the Government Hospital in the State and, therefore, reimbursement was confined only to Rs.2,14,977/-.
23. It is stated that the medical reimbursement claims have been scrutinized/ restricted in accordance with the Central Services (Medical Attendance)
Rules, 1944, Rules/Instructions issued by the Government from time to time, including Notifications/Instructions dt. 21.06.2008 and letter issued on
25.04.2018 of the State of Himachal Pradesh. Copy of a letter dt. 16/17.07.2018 is annexed as Annexure R-2/J.
Consideration by the Court
24. We have noted the contentions of the parties.
25. Vide Annexure P-1, claim was raised by the petitioner for himself and for his spouse for Rs.5,37,941/-, including air-fare amount of Rs.37,518/-,
for having undertaken treatment at Apollo Hospital at Mumbai, which was under an emergency.
26. The High Court of Himachal Pradesh referred his case to the State Government of Himachal Pradesh for allowing full reimbursement including
air-fare followed by reminders dt. 29.07.2014, 14.09.2017 & 20.11.2017, respectively.
27. The High Court on 08.06.2018, remitted Rs.2,14,977/- against verified bills of Rs.4,52,607/-.
28. The question is:
“ whether the petitioner is entitled to reimbursement of the balance amount of his claim?â€
29. It is not the case of the State Government that the type of surgery petitioner and his wife had undergone could have been performed in any
Government Hospital in the State Of Himachal Pradesh.
30. The plea taken by the State of lack of urgency for the petitioner to undergo the operation in Mumbai, cannot be accepted since the certificate
issued by the surgeon indicates the urgency for the surgery on spine of petitioner. The State cannot be permitted to override the expert opinion of the
Surgeon who opined about the urgency for the surgery. We reject the plea of the State in this regard.
31. If petitioner’s wife also fell sick at the same time and also had to undergo treatment as an in patient in a Hospital in Mumbai, reimbursement
cannot be denied to petitioner as she was there to take care of him as his companion and wife.
32. We shall consider whether the 1st respondent is correct in framing a Policy dt.21.6.2008 by treating him on par with an ordinary State Government
employee and restricting claims to rates prescribed in CGHS or PGIMER Chandigarh/AIMS.
33. Clauses 9.9 & 10.2 of the Policy of the Department of Health framed by the State Of Himachal Pradesh is the basis for the said view. The
preamble to the said policy states as under:
“ Whereas the matter regarding granting recognition/empanelment to private hospitals/health institutions/diagnostic labs and reimbursement to State
Government employees , their dependents and pensioners within and outside the State was under consideration of the Government.
Now therefore , in supersession of this department’s notification no.HFW-B(A) 8 1/2003 (I/N) dt.14.7.2006 , Notification No.HFW-B (A) 8-
1/2003 (I?N-IV) dt.1.11.2007 and al other earlier instructions/office memoranda/notifications/guidelines in the matter concerned, the Governor of
Himachal Pradesh is pleased to frame a new policy for granting recognition/empanelment to private hospitals/health institutions/diagnostic labs and
reimbursement to State Government employees , their dependents and pensioners as per Annexure-A…â€
34. So we shall therefore have to consider the reasonableness of this view of the State Government that retired High Court Judges can be equated
with State Government employees for conferment of benefit of reimbursement of medical expenses incurred in private hospitals/health
institutions/diagnostic labs and reimbursement within and outside the state.
35. In order to examine this aspect we shall examine first whether the High Court Judges or former High Court Judges/members of District judiciary
can be treated on par with State/Central Government employees at all. The law, as we shall point out hereafter, does not permit this.
36. It has been held by the Supreme Court that Judges cannot be treated as Government employees since Judicial service is not a service in the sense
of ‘employment’ and as members of the Judiciary, Judges exercise sovereign judicial power of the State. The parity is between the political
executive, the Legislators and the Judges and not between the Judges and the administrative executive.
37. In All India Judges’ Assn. (II) v. Union of India (1993) 4 SCC 288, the Supreme Court examined this aspect and held:
“7. It is not necessary to repeat here what has been stated in the judgment under review while dealing with the same contentions raised there. We
cannot however, help observing that the failure to realize the distinction between the judicial service and the other services is at the bottom of the
hostility displayed by the review petitioners to the directions given in the judgment. The judicial service is not service in the sense of
‘employment’. The Judges are not employees. As members of the judiciary, they exercise the sovereign judicial power of the State. They are
holders of public offices in the same way as the members of the council of ministers and the members of the legislature. When it is said that in a
democracy such as ours, the executive, the legislature and the judiciary constitute the three pillars of the State, what is intended to be conveyed is that
the three essential functions of the State are entrusted to the three organs of the State and each one of them in turn represents the authority of the
State. However, those who exercise the State power are the Ministers, the Legislators and the Judges, and not the members of their staff who
implement or assist in implementing their decisions. The council of ministers or the political executive is different from the secretarial staff or the
administrative executive which carries out the decisions of the political executive. Similarly, the Legislators are different from the legislative staff. So
also the Judges from the judicial staff. The parity is between the political executive, the Legislators and the Judges and not between the Judges and
the administrative executive. In some democracies like the USA, members of some State judiciaries are elected as much as the members of the
legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative
executive or the members of the other services. The members of the other services, therefore, cannot be placed on a par with the members of the
judiciary, either constitutionally or functionally.
8. This distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason.
Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is
trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the
independence of the judiciary, and no price is too heavy to secure it. To keep the Judges in want of essential accoutrements and thus to impede them
in the proper discharge of their duties, is to impair and whittle away justice itself.
9. …. Initially, there was also no clear demarcation between the judicial and executive services and the same officers used to perform judicial and
executive functions. Since the then Government had failed to make the distinction between the two services right from the stage of the recruitment, its
logical consequences in terms of the service conditions could not be avoided. With the inauguration of the Constitution and the separation of the State
power distributed among the three branches, the continuation of the linkage has become anachronistic and is inconsistent with the constitutional
provisions. As pointed out earlier, the parity in status is no longer between the judiciary and the administrative executive but between the judiciary and
the political executive. Under the Constitution, the judiciary is above the administrative executive and any attempt to place it on a par with the
administrative executive has to be discouraged. The failure to grasp this simple truth is responsible for the contention that the service conditions of the
judiciary must be comparable to those of the administrative executive and any amelioration in the service conditions of the former must necessarily
lead to the comparable improvement in the service conditions of the latter.â€
38. This was reiterated in All India Judges Association v. Union of India and others (W.P (Civil) No.643 of 2015 dt.28.2.2020) and All India Judges
Association v. Union of India and others (W.P (Civil) No.643 of 2015 in Order dt.27.7.2022).
39. As recently as in 2023, this was again reiterated in All India Judges Association v. Union of India and others (W.P (Civil) No.643 of 2015 in order
dt.19.5.2023).
40. In a later order passed on 4.1.2024 passed in All India Judges Association v. Union of India and others case also the Supreme Court emphasized
in the context of certain benefits for District Judiciary that the post-retirement conditions of service have a crucial bearing on the dignity and
independence of the office of a Judge and how it is perceived by the society; and if the service of the judiciary is to be a viable career option so as to
attract talent, conditions of service, both for working and retired officers, must offer security and dignity. It declared :
“13. Judicial service is an integral and significant component of the functions of the State and contributes to the constitutional obligation to sustain
the rule of law. Judicial service is distinct in its characteristics and in terms of the responsibilities which are cast upon the officers of the District
Judiciary to render objective dispensation of justice to citizens. The State is duty bound to ensure that the conditions of service, both during the tenure
of office and after retirement, are commensurate with the need to maintain dignified working conditions for serving judicial officers and in the post-
retirement emoluments made available to former members of the judicial service. Members of the district judiciary are the first point of engagement
for citizens who are confronted with the need for dispute resolution. The conditions in which judicial officers across the country are required to work
are arduous. The work of a judicial officer is not confined merely to the working hours of the mandatory duties rendered in the course of judicial duties
in the court. Every judicial officer is required to work both before and after the court working hours. The judicial work of each day requires
preparation before cases are called out. A judicial officer continues to work on cases which may have been dealt with in court, in terms of preparing
the judgment and attending to other administrative aspects of the judicial record. That apart, members of the district judiciary have wide ranging
administrative functions which take place beyond working hours, especially on week-ends including the discharge of numerous duties in relation to
prison establishments, juvenile justice institutions, legal service camps and in general, work associated with the Legal Services Act 1987.
14. The work of a Judge cannot be assessed solely in terms of their duties during court working hours. The State is under an affirmative obligation to
ensure dignified conditions of work for its judicial officers and it cannot raise the defense of an increase in financial burden or expenditure. Judicial
officers spend the largest part of their working life in service of the institution. The nature of the office often renders the incumbent incapacitated in
availing of opportunities for legal work which may otherwise be available to a member of the Bar. That furnishes an additional reason why post-
retirement, it is necessary for the State to ensure that judicial officers are able to live in conditions of human dignity. It needs to be emphasized that
providing for judges, both during their tenure and upon retirement, is correlated with the independence of the judiciary. Judicial independence, which is
necessary to preserve the faith and confidence of common citizens in the rule of law, can be ensured and enhanced only so long as judges are able to
lead their life with a sense of financial dignity. The conditions of service while a judge is in service must ensure a dignified existence. The post-
retirement conditions of service have a crucial bearing on the dignity and independence of the office of a judge and how it is perceived by the society.
If the service of the judiciary is to be a viable career option so as to attract talent, conditions of service, both for working and retired officers, must
offer security and dignity.â€
41. Thus as per the above decisions of the Supreme Court, the parity is between the political executive, the Legislators and the Judges and not
between the Judges and the administrative executive. The Judges, at whatever level they may be, represent the State and its authority unlike the
administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on a par with the
members of the judiciary, either constitutionally or functionally . The post-retirement conditions of service have a crucial bearing on the dignity and
independence of the office of a judge and how it is perceived by the society. If the service of the judiciary is to be a viable career option so as to
attract talent, conditions of service, both for working and retired officers, must offer security and dignity.
42. Having regard to the above binding precedents, the attempt of the State of Himachal Pradesh to deny the petitioner, a retd.High Court Judge, full
reimbursement of the expenditure incurred in regard to his and his spouse’s surgery and treatment by applying the policy dt.21.6.2008 which
applies to State Government employees, therefore cannot be countenanced.
43. We may also refer to the Central Services (Medical Attendance ) Rules,1944 and the High Court Judges Act,1954.
44. The Central Services (Medical Attendance ) Rules,1944 apply, as per Rules 1(2) thereof, to all Government servants except those in railway
service (Note-1 thereto) , Defence Services personnel, Officers of the All India Services and other Persons who are governed by the All India
Services (Medical Attendance ) Rules and some other categories ( Note-2 thereto).
45. For the same reasons that the Policy dt.21.6.2008 framed by the State of Himachal Pradesh for it’s employees cannot apply to retd. High
Court Judges, the Central Services (Medical Attendance ) Rules,1944, which apply to Central Government employees (other than the excepted
categories), cannot apply to retd. High Court Judges.
46. The State cannot treat the petitioner on par with State Government Civil servants or Central Government Civil servants and apply even the Central
Services (Medical Attendance) Rules,1944 and deny reimbursement to petitioner and his wife.
47. We shall now refer to the High Court Judges ( Salaries and Conditions of Service) Act,1954 which deals with medical facilities for retired High
Court Judges.
48. Section 23-D thereof deals with this aspect. It states:
“23D[Inserted by Act 35 of 1976 s.5 w.e.f.1.10.1974 members of the other services. The members of the other services, therefore, cannot be
placed on a par with the members of the judiciary, either constitutionally or functional] . Medical facilities for retired Judges.â€
(1) Every retired Judge shall, with effect from the date on which the High Court Judges (Conditions of Service) Amendment Act, 1976 (35 of 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, 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 contained in sub-section (1) but subject 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.â€
49. In our view Section 23-D had been enacted long before the declaration of law by the Supreme Court in the decisions cited supra that the parity is
between the political executive, the Legislators and the Judges and not between the Judges and the administrative executive. The Judges, at whatever
level they may be, represent the State and its authority unlike the administrative executive or the
50. So even section 23-D of the High Court Judges ( Salaries and Conditions of Service) Act,1954 , which equates retired High court judges to retired
class-I officers of the Central Civil Services also cannot be taken advantage of by the State Government for denying to the petitioner, a retd. High
Court Judge, full reimbursement of the medical expenses as is sought by him in the Writ Petition.
51. In Union of India (UOI) and Ors. vs. T.S. Oberoi and Ors Dt.7.11.2003 â€" DEL HC : MANU/DE/1341/2003 , the Delhi High Court considered
the case of a retired Judge of Delhi High Court placed in a similar situation to that of the petitioner in the instant case. The contention of Union of
India in that case was that the learned Judge Mr. Justice Chawla had not become a member, by paying a lump sum fee as per the CGH Scheme
immediately on his retirement, and subsequently he could not avail of the benefit of the CGH scheme for the treatment undergone prior to the date of
his becoming a member under the scheme. The Division Bench of Delhi Court rejected this submission of the Union of India by observing that a
retired Judge of any of the Superior Courts has a different status from a retired Civil Servant. Since, during his tenure as a Judge of the High Court he
holds a position under the Constitution by virtue of his status as a Judge of a High Court, he is entitled to medical facilities, including those provided by
the CGHS. A Judge of the High Court is not required to make any contribution for availing facilities under the CGHS, unlike the Civil Servant. One of
the conditions of service of Judges of the Superior Court is that the State is under an obligation to provide him medical facilities mentioned in Rule 2 of
the High Court Rules, 1956.
52. The Division Bench of the Delhi High Court held:
“12. The learned Central Government Standing Counsel fails to appreciate that the position of a retired Judge of any of the superior Courts is
different from a retired Civil Servant. It is well known that during his tenure as a Judge of a High Court he holds a position under the Constitution. By
virtue of his status as a Judge of a High Court, he is entitled to medical facilities, including those provided by the CGHS. A Judge of a High Court is
not required to make any contribution for availing facilities under the CGHS unlike a Civil Servant. One of the conditions of service of a Judge of a
superior Court is that the State is under an obligation to provide him medical facilities as mentioned in Rule 2 of the Rules.
13. Judges of the Supreme Court as well as of the High Court discharge sovereign judicial functions. The position of a Judge of these Courts for grant
of medical facilities remains the same even after retirement. However, High Court Judges Rules, as pointed out above, makes it manifestly clear that
for a sitting Judge of the High Court of Delhi as well as of Punjab and Haryana, the medical facilities would be the same as applicable to a Union
Deputy Minister. Therefore, providing medical facilities less than the one envisaged under the Rules would be against the legislative intent as well as
the status of the Judges of the High Court even after they demit office. Anything which is inconsistent with the spirit of the Constitution or interferes
with the independence of judiciary has to be struck down. Independence of judiciary is to be maintained not only when the Judge is in office. If a
Judge of superior Court has to look for favors in regard to medical facilities after demitting office, that would tantamount to interference with the
independence of judiciary. Such interference has to be eschewed at all costs.â€
53. What the Delhi High Court had referred to in it’s judgment are the High Court Judges Rules, 1956 framed by the Central Government in
exercise of the powers conferred by sections 23 and 24 of the High Court Judges (Salaries and Conditions of Service) Act, 1954, ( Act 28 of 1954 ).
These Rules apply to High Court Judges while in service.
54. Rule 2 thereof deals with medical reimbursement and states:
“42. Conditions of Service in certain casesâ€
The conditions of service of a Judge of a High Court for which no express provision has been made in the High Court Judges (Salaries and Conditions
of Service) Act, 1954, shall be, and shall from the commencement of the Constitution be deemed to have been determined by the rules for the time
being applicable to a member of Indian Administrative Service holding the rank of Secretary to the Government of the State in which the principal seat
of the High Court is situated.
6(Provided that, in the case of a Judge of the High Court of Delhi, 7(and a Judge of the High Court of Punjab and Haryana 8 ..............) the conditions
of service shall be determined by the rules for the time being applicable to a member of the Indian Administrative Service on deputation to the
Government of India and
4 1. Published in the Gazette of India, 1956, Pr.II Sec.3, p.106 2. These rules were extended to the State of Sikkim on 16.5.1975 vide Notification
Nos.208(E) and S.O. 210(E) dated 16.5.1975. 3. Ins. by Amendment Act 7 of 1999 w.e.f. 1.1.1996. 4. Omitted by SRO 707 dated 28.2.1957. 5. Ins.
by S.R.O. No.707 dated 28.2.1959 6. Ins. GSR 497 dated 13.3.1970 7. Ins. by GSR 562 dated 21.3.1979 w.e.f. 1.11.1966. 8. Omitted by GSR 698(E)
dt.31.7.92. 9. Subs. by GSR No.1175(E) dated 4.11.1986. holding the rank of Joint Secretary to the Government of India stationed at New Delhi.
9[Provided further that, in respect of facilities for medical treatment and accommodation in hospitals :--
(a) in the case of Judges of the High Courts other than the Delhi High Court and the Punjab and Haryana High Court, the rules and provisions as
applicable to a Cabinet Minister of the State Government in which the principal seat of the High Court is situated, shall apply;
(b) in the case of Judges, other than the Chief Justices, of the Delhi High Court and the Punjab and Haryana High Court, the rules and provisions as
applicable to a Union Deputy Minister shall apply ;
(c) in the case of the Chief Justices of Delhi High Court and the Punjab and Haryana High Court, the rules and provisions as applicable to a Union
Cabinet Minister shall apply.]
NOTE: Cases of reimbursement of medical charges decided before the commencement of these rules shall not be reopened unless it is specifically so
desired by the Judge concerned.
55. So for High Court Judges of Delhi and Punjab and Haryana High Courts, parity is with the Cabinet Minister of the State Government as regards
medical reimbursement , and for Judges of other High Courts parity for the said purpose is with Union Deputy Minister.
56. This judgment regarding Justice Chawla was followed in Gurjit Singh v. Registrar (General) MANU/DE/0684/2013 and Mukul Talwar v. Union of
India W.P.(c) .No.3432/2021 dt.16.3.2021 by the Delhi High Court. In the latter case it was also held that reimbursement of the amount spent has to
be made even though the treatment was availed of in a private hospital.
57. As regards the Judges of the Andhra Pradesh High Court, both serving and retired, the State Govt. of Andhra Pradesh had issued G.O.Ms.No.92
Health, Medical and family Welfare (I.1) Department dt.22.8.2019 framing a scheme for reimbursement of medical expenses incurred by the sitting
and retired Judges of that High Court.
The said scheme interalia permits free medical attendance and treatment in any Government/private hospital and even treatment at the residence of
the Judge/Doctor; and states that reimbursement shall be made even if the treatment is in a private hospital without prior approval of the State
Government.
It also permits, on the advice of the doctor/Medical officer attending to the, to go any place within the country for medical treatment with personal
attendant or Medical attendant by I class AC or by Air and provides for full reimbursement of the same.
When the said State is offering such a benefit, we fail to understand why the respondent no.1 is not giving similar benefit to retired Judges of this
Court. After all, the cost to the State exchequer is too small to be a relevant consideration.
58. Counsel for the petitioner also placed reliance on certain orders passed by the Supreme Court from time to time in the case of Justice V.S. Dave
versus Kusumjit Sidhu & Ors. Contempt Petition (Civil) nos.425-426/2015 in W.P.(C) no.523-524 of 2002
. In this case, the order passed on 08.08.2017 with regard to the State of Himachal Pradesh, may be noted:
“I.A. NO.11 IN CONTEMPT PETITION (C) NOS.425-426 OF 2015 IN WRIT PETITION (C) NO.523 OF 2002
We have taken note of the affidavit filed by the Chief Secretary to the Government of Himachal Pradesh to the effect that as a one-time measure full
exemption has been granted in the case of Mr. Justice T.R. Handa (Retd.) and that the entire claim which was pending has since been allowed.
We have also perused the affidavit filed by the Registrar General of the High Court of Himachal Pradesh wherein in paragraph 20 it has been stated
that a Hon’ble Judges Committee in a meeting held on 6th April, 2017 resolved to adopt the Rules for reimbursement of medical expenses of High
Court Judges of the Bombay High Court and its Benches and their family members relating to the treatment taken in private hospitals for specified 27
emergent and 5 serious medical situations. In the said affidavit of the Registrar General of the High Court of Himachal Pradesh it is further stated that
the resolution of the Hon’ble Judges Committee has been approved by the Full Court in its meeting held on 1st June, 2017 and that the matter has
been forwarded to the State Government by him vide letter dated 6th July, 2017.
As the matter is pending before the State Government we adjourn the case for eight (08) weeks.
List the matter after eight (08) weeks.
Mr. P.H. Parekh, learned Senior Counsel appearing for the original writ petitioner i.e. Association of Retired Judges of Supreme Court and High
Courts represented by its President Justice V.S. Dave may bring on record the practice prevalent in different States with regard to medical
reimbursement on or before the next date fixed.â€
59. In a later order passed in that same case on 22.03.2018, the Supreme Court noted wide variation in the matter of grant of medical benefits in
different High Courts to retired High Court Judges and observed that the feasibility of having uniform practice with regard to grant of medical benefits
to the retired Chief Justices and retired Judges of High Courts would have to be considered in the presence of the counsel of all the States of the
Union as well as the High Courts and adjourned the matter to 18.04.2018. On that day, the Amicus Curiae Shri P.H. Parekh, in a written note
circulated to the Supreme Court, made the following suggestions:-
“(a) the Retired Judges of High Court and their family would be entitled to reimbursement of the medical expenses on prescription of government
doctors/hospitals or registered medical practitioners/private hospitals;
(b) The sanctioning authority will be the Registrar General of the concerned High Court who will exercise the power with the prior approval of the
Chief Justice of High Court or his nominee;
(c) The sanctioning authority will be the Registrar General with the approval of the chief Justice of High Court or his nominee.
(d) The extent of the benefit which the Retired Judges will be entitled to would be the same as is available to sitting Judges of the High Courts.â€
Over and above Shri Parekh has suggested the following:
“(ii) All State Governments should extend medical facilities to retired judges of High Courts and their family members throughout the country
uniformly.
(iii) There should not be any need to seek prior approval from the State Government before taking treatment in a private hospital or a non CGHS
empanelled hospital.
(iv) The retired judges and their family members should be allowed medical reimbursement for treatment taken in any State and the same should not
be confined to the State where the Retired Judge is residing. The medical bills in such cases should be submitted to the Registrar General of the
concerned High Court from where the Judge retired.
(v) The State Government may consider introducing cashless medical facility in hospitals/nursing homes wherever possible for the retired judges and
their family members.â€
60. After considering the same, the Supreme Court was of the tentative view that medical reimbursement of a retired Chief Justice and/or a retired
Judge of a High Court should be given reimbursement of all medical expenses including hospital charges which a retired Chief Justice and/or a retired
Judge of a High Curt may have had to incur in connection with the medical treatment of himself and/or his/her dependent family members. Except for
certain inadmissible items of expenditure, on which there can be no dispute, such reimbursement should extend to all items of expenditure including
hospital charges. It held that there is also a need to expedite the system/process of reimbursement which can be achieved if the power of sanctioning
medical reimbursement is vested with the Chief Justice of a High Court, who may also delegate the same to his nominee(s)/assignee(s).
61. Matter was then adjourned to hear the respective State Governments.
62. The matter later underwent several adjournments.
63. In an order passed on 25.09.2018, the Supreme Court reiterated that its endeavor is to ensure that medical facilities for retired Judges of the High
Courts are at par with sitting Judges and the sanctioning authority for reimbursement etc. is the Registrar General of the concerned High Court of the
State, who will exercise the power with the prior approval of the Chief Justice of the High Court.
64. It also recognized that the issue has other dimensions like availability of medical reimbursement for treatment in hospital outside the State; in
private hospitals without the requirement of seeking approval from the State Government and cashless transactions in hospitals.
65. In a later hearing in the same case, held on 24.10.2018, the Supreme Court noted that some States like Arunachal Pradesh, Haryana, Goa,
Karnataka, Mizoram & Telangana, are providing medical facilities at par with the sitting Judges and are permitting reimbursement for medical
treatment in private hospitals without prior approval of the State Governments; the sanctioning authority being a Registrar General of the High Court
and reimbursement was to be provided for treatment taken in any other State as well.
66. The Court, therefore, directed that other States, including Himachal Pradesh, should provide medical facilities for retired Chief Justices/Judges
including spouses and dependent family members at par with what was indicated in its order while dealing with the case of Arunachal Pradesh, i.e. the
facilities have to be at par with sitting Judges & reimbursement for medical treatment in private hospital would be made without prior approval of State
Government, sanctioning authority would be Registrar General of a High Court and reimbursement would be provided for treatment taken in any other
State and even a facility for cashless treatment.
67. This order is binding on the State of Himachal Pradesh.
68. In the subsequent order passed on 30.04.2019, the Supreme Court recorded that any failure to provide medical facilities in terms of its directions,
would be construed as an act of defiance of its order, for which, the Chief Secretaries of the States/Union Territories would be accountable. It also
directed the Registrar General of each of the High Courts of the concerned States and Union Territories to sanction reimbursement of funds for
availing all medical facilities by retired Chief Justices and Judges of the High Courts, including their spouses and dependent family members, in terms
of its above directions, regardless of action or inaction on behalf of the State authorities and directed them to sanction reimbursement claim as and
when made.
69. It observed in a subsequent order passed on 25.07.2019 that the direction passed by it for reimbursement for medical treatment in private hospital
without prior approval of the State Government, would be from empanelled private hospitals and that the State of Himachal Pradesh is in default.
70. But notwithstanding the same, it is clear that the Supreme Court intends that the facilities have to be at par with sitting Judges & reimbursement
for medical treatment in private hospital would be made without prior approval of State Government and reimbursement would be provided for
treatment taken in any other State and even a facility for cashless treatment, though a final order on the aspect is yet to be passed by the Supreme
Court.
71. For all the above reasons, we find that the petitioner has made out a case for full reimbursement of the expenses incurred by him for medical
treatment for himself and his wife as also the travel expenses, and we reject the respondents’ objections for denying the same as being without
any merit.
72. The Writ petition is accordingly allowed; the respondents shall pay to the petitioner Rs.2,37,630/- towards medical reimbursement for treatment
undergone by him and his spouse, and Rs.37,518/- incurred by petitioner towards their travel expenses within 4 weeks with interest at 7% p.a from the
date the claim arose i.e 21.9.2016 till date of payment; the respondents shall also pay costs of Rs.10,000/- to petitioner within 4 weeks.
73. Miscellaneous applications, if any, shall stand disposed off.