Vijyender Sharma
SHIMLA-----The Division Bench of H.P. High Court comprising of Hon'ble Justice Rajiv Sharma and Justice Sureshwar Thakur, while dismissing the writ petition filed by the Union of India titled as Union of India vs. Shankar Lal Sharma, in a case of medical reimbursement of retired central government employee has observed that a "socialist State", as the Preamble depicts, is the basic structure of the Constitution of India read with other cognate Articles of Part-III and Part-IV of the Constitution of India. Similarly, the 'welfare State' is the basic feature of the Constitution of India.
There is a difference between 'basic structure' and 'basic features' of the Constitution. The action of the Union of India not to reimburse the medical bills to the respondent and also not giving option to him and similarly situate persons residing in a city not covered under CGHS as per O.M. dated 5.6.1998 to either opt for CGHS Scheme or CS(MA) Rules, 1944, is illegal, arbitrary, capricious, discriminatory, thus, violative of Articles 14, 16 and 21 of the Constitution of India.
The Court observed that the Right to health is a human right. The health of the people should be supreme law" based on the legal maxim "salus populi suprema lex esto". The Court observed that the decision in matters pertaining to the health of the employee should be taken with utmost humane approach. A serving employee, who enjoys benefits under the CS(MA) Rules, 1944, cannot be left high and dry immediately after retirement for want of medical care. His medical issues are required to be looked into with more sensitivity, compassion and sympathy. His genuine requirements for medical treatment cannot be permitted to be buried in the labyrinth of red tapism
The Division Bench further held that it is the prime responsibility of the State to protect health and vigour of retired Government officials, this being their fundamental right under Article 21, read with Articles 39(3), 41, 43, 48-A of the Constitution of India. The steps should be taken by the State to protect health, strength and vigour of the workmen. Non-providing of post-retirement medical care to retired Government official in a city not covered by CGHS at par with in service employee would result in violation of Article 21 of the Constitution of India. Moreover, employees need medical care most after their retirement. The State cannot call its own actions as wrong. The Court clarified and explained O.M. dated 20.08.2004 and made clear that all the Central Government pensioners residing in non-CGHS areas would be covered either under the CS(MA) Rules, 1944 or CGHS as per their option to be sought for by the Central Governmentwithin six months. The Court observed that henceforth option of the employees be sought by the Central Government at the time of their retirement whether they want to be covered under the CS(MA) Rules or under the CGHS. In order to avoid litigation, the judgment was made applicable to all the retired Government officials residing in non-CGHS areas. The Court observed that there should be equality of health benefits to retirees as well in their evenings of life. There cannot be any discrimination while extending the social benefits to in service and retirees. It is the prime responsibility of the State to protect the health of its workers. The Court read down Note 2 appended to Rule 1 in view of O.M. dated 05.06.1998 to extend the benefit of CS(MA) Rules, 1944 to retired Government officials residing in non-CGHS areas to save it from unconstitutionality and to make it workable. The Court further observed that the higher Courts have to evolve new interpretive tools in changing times. The neo capitalism may concentrate wealth in the hands of few persons which would be contrary to the philosophy of the Constitution of India.
The legislation and the policies of the State must be pro-poor, pro-scheduled caste, scheduled tribes and other weaker sections of the society including the pensioners. The system must give due respect and maintain the dignity of the retired personnel by providing them sufficient means including good health care in their twilight years.
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