C.K.Thakker, J. - (1.) 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.
(2.) 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; (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 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.
(3.) 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 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 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.;