Holding

The Ex‑Servicemen Contributory Health Scheme, 2002 is constitutional, legal and valid, and the Government must either waive or pay the one‑time contribution for ex‑servicemen who retired before 1 January 1996, though they are not entitled to future medical allowance.

Summary

The Confederation of Ex‑Servicemen Associations filed a writ petition under Article 32 seeking free and full medical aid for ex‑defence personnel, their families and dependents, arguing that such aid is a fundamental right under Articles 14 and 21. The Union of India responded that the Ex‑Servicemen Contributory Health Scheme (ECHS) of 2002, a contributory scheme requiring a one‑time payment, is a lawful policy and that free medical care is not a guaranteed right for ex‑servicemen. The Court held that the classification between in‑service and retired personnel is reasonable, the doctrine of legitimate expectation does not apply, and the ECHS is intra‑vires. However, the Court directed the Government to waive or pay the contribution for those who retired before 1 January 1996, while denying any future medical allowance. The petition was therefore partly allowed.

Issues considered

The petitioners' claim that free and full medical aid is a fundamental right for ex‑servicemen under Articles 14, 21 and other provisions.
Whether the classification of benefits between in‑service defence personnel and retired ex‑servicemen violates Article 14.
The applicability of the doctrine of legitimate expectation to the ex‑servicemen's claim.
The constitutionality and legality of the Ex‑Servicemen Contributory Health Scheme, 2002, requiring a one‑time contribution.
The appropriate relief, if any, that the Court may grant under Article 32.

Legislation cited

Constitution of Indias. Article 14, s. Article 21, s. Article 32, s. Article 39(e), s. Article 41, s. Article 43, s. Article 48A
Societies Registration Act, 1860

Subjects

ex‑servicemenmedical aidArticle 14Article 21classificationlegitimate expectationcontributory health schemewelfare statepublic interest litigation

Judgment

A CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS AND ORS.
v
UNION OF INDIA AND ORS.

AUGUST 22, 2006

B [Y.K. SABHARWAl, CJ., K.G. BALAKRJSHNAN, S.H. KAPADIA, C.K.
THAKKERAND P.K. BALASUBRAMANYAN, JJ.J

Constitution of India, 1950:

C Articles 14 and 21-Full and free medical aid for in-service defence
personnel/Government employees-Not extended to ex-service defence
personnel-Reasonableness of classification--Held: reasonable since two
categories ofemployees form different class and cannot be said to be similarly
situated-There is, no violation of Article 14 if they are treated differently-
D Likewise, classification between defence personnel and other than defence
personnel is also reasonable and valid-Doctrine of legitimate expectation
also not applicable as there was no withdrawal or revocation of medical
services of ex--servicemen.

Articles 14 and 21-Writ filed by ex-servicemen for direction to
E Government to provide free and full medicare to them, their families/
dependents-Government introduced Ex-servicemen Contributory Health
Scheme, 2002 (ECHS)-Challenge to--On the ground that right to medical
aid is fundamental right hence asking ex-servicemen to pay contribution
amount for getting medical benefits is violative of such rights-Held: Asking
ex-servicemen to pay contribution neither violates Part Ill nor Part IV of the
F Constitution--Getting free and full medical facilities is not a part of
fundamental right of ex-servicemen--Ex-servicemen who are getting pension
may become. members of ECHS by making 'one time contribution' of
reasonable amount (ranging from Rs. l,8001- to Rs.18,000/-)-This cannot be
held illegal or unreasonable-However, defence personnel during their youth
G had put their lives to high risk and improbabilities- They, therefore, are
entitled to privileged treatment-As a mark of respect and gratitude, they
must be provided medical services after retirement-On facts, respondent-
Government directed either to waive the amount of contribution or to pay
such amount on behalf of ex-servicemen who intend to avail medical benefits
under the said scheme.
H 872
CONFEDERATION OF EX-SERVICEMEN ASSOCJATJONSv. U.0.1. 873
Article I 4-Test of permissible classification-Discussed. A
Article 2 I-Free and full medical facilities-Held: ls not a fundamental
right guaranteed by Part JJJ or Part JV of the Constitution.

Article 32-Public interest litigation-Writ Petition seeking direction
to the Government to recognize the right of full and free medicare of ex- B
servicemen and their families-Maintainability of, when filed by Confederation
of individually registered Associations of ex-servicemen-Held,
r Maintainable-Petitioner-Confederation representing those Associations,
which is also registered, has locus standi to file the petition-Moreso, since
larger public issue and cause is involved in the Writ petition.
c
Doctrines:

Doctrine of 'legitimate expectation'-Applicability of

The Petitioner-Association, a Confederation of five Ex-servicemen
Associations filed PIL under Article 32 of the Constitution before this Court D
for an appropriate writ directing the Respondent-Union of India to take
necessary steps to ensure that full and free medicare is provided to ex-service
defence personnel, their families and dependents on par with in-service defence
personnel and to extend such medicare for all diseases including serious and
terminal diseases, even if treatment for those diseases is not available at E
Military Hospitals. The grievance of petitioner is that although they have a
valuable right of full and free medicare, which is a fundamental right
guaranteed by Part III as also covered by Directive Principles in Part IV of
the Constitution, no concrete and effective steps had been taken by the
respondents which constrained them to approach this Court; that such
facilities are provided to Government employees and retired employees and F
therefore refusal to extend similar medical benefits to ex-defence personnel
is arbitrary, discriminatory, unreasonable and violative of A11icles 14, 16, 19
and 21 of the Constitution.

The Respondent contended that the Petitioner-Associations were not
registered associations and therefore had no locus standi to file the Writ G
,, Petition. On merits, it contended that 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 H
874 SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A 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. I 00 per month to those ex-servicemen and their
families who reside in the areas where facilities of Armed Forces hospitals/
clinics are not available. As to discrimination, it contended that the case of
ex-servicemen cannot be compared with retired Civilian Central Government
B employees inasmuch as medical facilities under Central Government Health
Scheme 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,
C 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.

During the pendency of the writ petition, the Government of India had
introduced a scheme known as "Ex-Servicemen Contributory Health Scheme"
D (ECHS) partly taking care of grievances raised by the petitioner. The scheme
is a contributory scheme for ex-servicemen and extends certain benefits on
payment of contribution. The Petitioner-Association has raised question that
to get free and full medical aid is their fundamental right and is corresponding
duty of the Government hence they can neither be denied that right nor be
•
E asked to pay contribution amount for getting medical benefits.

Partly allowing the Writ Petition, the Court

HELD: I. All Associations, which constitute Confederation, are
individually registered Associations of ex-servicemen. The petitioner-
F Confederation representing those Associations, which is also registered, can
certainly approach this Court by invoking the provisions of Part Ill of the
Constitution. Moreover, larger public issue and cause is involved in the Writ
Petition. Therefore, the petitioner-Confederation has locus standi to file the
petition. However, maintainability of petiti:m and justiciability of issues raised
therein are two different, distinct and independent matters and one cannot be
G mixed or inter-linked with the other. (888-D-EJ

Consumer Education and Research Centre and Ors. v. Union of India
and Ors., (1995] 3 SCC 42; Pradip Chandra Parija & Ors. v. Pramod
Chandra Patnaik & Urs. (2002) I SCC I and D.S. Nakara v. Union of India,
(1983) I sec 305, referred to.
H
CONFEDERATION OF EX-SERVICEMEN ASSOCIA TIONSv. U.0.1. 875

,.. 2.1. Article 14 guarantees equality before the law and confers equal A
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.
It thus prohibits discrimination or class legislation. It, however, does not
prohibit classification if otherwise it is legal, valid and reasonable.
1889-B-CI B
State of West Bengal v. Anwar Ali Sarkar & Anr., (19521 SCR 284;
Budhan Chaudhry v. State of Bihar, 119551 I SCR 1045; Sidi Supply Co. v.
Union of India & Ors., 11956) SCR 267; Ram Krishna Dalmia v. Justice
Tendolkar, [1959) SCR 279; VC. Shukla v. State (Delhi Administration),
11980) Supp. SCC 249; Special Courts Bill, Re, (197912 SCR 476; R.K. Garg
v. Union of India, [1981) 4 SCC 675; State ofA.P. & Ors. v. Nallamilli Rami C
Reddi & Ors., (2001] 7 SCC 708 and MP. Rural Agriculture Extension Officers
Association v. State of MP. & Anr., (2004) 4 SCC 646, referred to.

2.2. Every classification to be legal, valid and permissible, must fulfil
the twin-test, namely: (i) the classification must be founded on an intelligible
differentia which must distinguish persons or things that are grouped together D
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. (891-B-D]

2.3. Classification between in-service employees and retirees is legal,
valid and reasonable classification and if certain benefits are provided to in- E
service employees and those benefits have not been extended to retired
employees, there is no discrimination hit by Article 14 of the Constitution.
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 classificatio!I between p
defence personnel and other than defence personnel is also reasonable and
valid classification. (891-D-FI

2.4. For medical facilities provided to retired civil servants, there is also
a scheme known as the Central Government Health Scheme (CGHS), which
is again contributory. Retired Central Government Servants who are members G
of the scheme are covered by the said scheme and they are provided medical
services on payment of specified amount under the scheme. (891-FI

3.1. The doctrine of 'legitimate expectation' is a 'latest recruit' to a
long list of concepts fashioned by Courts for review of administrative actions.
Under the said doctrine, a person may have reasonable or legitimate H
876 SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.

A 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
B 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. 1891-H; 892-A-C]

3.2. The doctrine of legitimate expectation, cannot be invoked by the
petitioner. It is not the case of the petitioners that certain medical facilities
C 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 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
D has been improved. They have, therefore, prayed that medical facilities which
were not proYided in past may also be provided now to retired defence personnel.
Similarly, medical facilities should also be extended for serious and terminal .,
diseases. 1892-G-H; 893-A-BI

Schmidt v. Secretary ofStale, 11969) 1 All ER 904 and Attorney General
E of Hong Kong v. Ng Yuen Shiu, (1983) 2 All ER 346, referred to.

4. In the absence of legislative provisions or administrative instructions
governing the field, this court may, in appropriate cases, issue necessary
directions. In the instant case, however, a scheme providing medical facilities
to ex-servicemen has been framed. It has been decided by the Central
F Government to extend medical facilities to retired defence personnel on the
basis of 'one time contribution' which is legal, proper and reasonable.
(893-D-E]

Delhi Judicial Service Association v. State of Gujarat, 119911 3 SCR
936; D.K. Basu v. State of West Bengal, [19971 1SCC416 and Visakha v. State
G ofRajasthan, 1199716 sec 241, held inapplicable.

5.1. 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
H Army, Air Force and Navy of the Union of India during cream period of youth
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. 877

putting their lives to high risk and improbabilities. As a mark of respect and A
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.1893-G-HI B
5.2. The contributory scheme of 2002 substantially covers extensive
medical facilities to be provided to ex-servicemen. 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. C
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. 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. This would apply only to those defence D
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. 1902-C, G-H; 903-C-DI

CESC Ltd. v. Subhash Chandra Bose, 11992) 1 SCC 441; Bandhua
Mukti Morcha v. Union of India, 11984) 3 SCC 161; Francis Coralie Mullin E
v. Administrator, Union Territory ofDelhi, 11981) 1 SCC 608; Paschim Banga
Khet Mazdoor Samity v. State of West Bengal, 11996) 4 SCC 37; Khatri (II) v.
State ofBihar, 11981) 1 SCC 627; Vincent Panikurlangara v. Union ofIndia,
(1987) 2 SCC 165 and National Textile Workers' Union v. P.R. Ramakrishnan,
fl983J 1 sec 228, referred to. F
Munn v. Illinois, (1876) 94 US 113, referred to.

6. 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 G
unconstitutional and ultra vires Part III of the Constitution. State does not
have unlimited resources to spend on any of its projects. The 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. Though H
878 SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.

A 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
B Rs.1,800/- to Rs.18,000/·). This cannot be held illegal, unlawful, arbitrary or
otherwise unreasonable. (907-F; 909-C; D-FI

Kharak Singh v. State of UP., (196411 SCR 332; Prithi Pal Singh v.
Union of India, (1982(3 SCC 140; A.K. Roy v. Union of India, (1'>8211 SCC
C 271; Olga Tellis v. Bombay Municipal Corporation, 1198513 SCC 545; State
of H.P. v. Urned Ram Sharma, (198612 SCC 63; Prabhakaran v. State a/Tamil
Nadu, 119871 4 SCC 238; A.R. Antulay v. R.S. Nayak, (19881 2 SCC 602;
Vikram Deo Singh v. State of Bihar, (1988( Supp SCC 734; Parmanand Katara
v. Union of India. (1989( 4 SCC 286; Kishan Pattnayak v. State of Orissa,
(19891 Supp I SCC 258; Shantistar Builders v. Narayan, (199011SCC520;
0 Chhetriya Pradushan Mukti Sangharsh Samiti v. State of UP .. (199014 SCC
449; Charan Lal Sahu v. Union of India, (1990( 1sec613; Delhi Transport
Corporation v. Delhi Transport Corporation Mazdoor Congress, 119911 Supp
I sec 600 (735); Kapila Hingorani v. State ofBihar, (20031 6 SCC I; District
Registrar & Collector, Hyderabad v. Canara Bank, 120051 I SCC 496 and
State of Pufl}ab v. Ram lubhaya Bagga (1998) 4 SCC ll 7, referred to.
E
7. 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. Getting free and full
medical facilities is not a. part of fundamental right of ex-servicemen. However,
this Court is not unmindful or oblivious of exemplary and extremely useful
F services rendered by defence personnel. It is 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. They are
"; exposed to harsh terrain and discharge their duties in hostile conditions of
life. They are unable to come in contract with their family members, kiths
G 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 I, 1996.
(909-G-H; 910-A-CJ
H
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER,J.] 879

8. Keeping in view totality of facts and circumstances, the ends of justice A
would be met if the Ex-servicemen Contributory Health Scheme, 2002 (ECHS)
is held to be legal, valid, intra vires and constitutional but direction is issued
to 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, B
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. (911-H; 912-A-B)

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 210of1999.
c
(Under Article 32 of the Constitution of India.)

K.S. Bhati, Aishwarya Bhati and Jagdev Singh Manhas for the Petitioners.

R.P. Mehrotra, Anil Katiyar and Garvesh Kabra for (Arvind Kumar D
Sharma) (N.P.) for the Respondents.

The Judgment of the Court was delivered by

C.K. THAKKER, J. This petition under Article 32 of the Constitution
is filed as Public Interest Litigation (PIL) by petitioner-Confederation of ex- E
serviceman Associations for an appropriate writ directing the respondent-
Union of India to recognize the right of full antl 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 F
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 G
Associations which have formed a Confederation in furtherance of common
cause for welfare of ex-defence personnel.

They are;

(i) Air Force Association; H
880 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A (ii) India Ex-services League;
(iii) Naval Foundation;
(iv) Disabled War Veterans (India); and
(v) War Widows Association.
B 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
C 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
re3ponsibility for medicare of disabled ex-servicemen as also for their
rehabilitation.
D
Disabilities, which were categorized, were as follows:

(0 Loss of limb or use of limb;
(ii) General medical and surgical disability;
E (iii) Loss of speech;

(iv) Deafness;
(v) Blindness and material impairment of vision;
(vi) Pulmonary Tuberculosis;
F (vii) Mental diseases.
y
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
G 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
H examine the issue as to availability of medical facilities to members of Armed
. CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.O.!. [C.K. THAKKER, J.) 881
...
Forces. In I 984, a High Level Committee headed by the then Rajya Raksha A
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 I990, 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), COM Study B
Report (I 987), Report on Army Logistics Philosophy (I 987), Verma Committee
(1988), Narsimhan Committee (1990), Vijay Singh Committee (1990), etc. In
1993, Lt. Gen. N. Foley Committee again examined the problem ofmedicare 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 C
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 D
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 E
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. I00 per
month for ex-servicemen living in rural areas who could not avail themselves
of military/civil hospital facilities.
F
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 G
of facilities would not be sufficient to ex-servicemen suffering from such
diseases. The Regulations were also silent about modem 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 H
882 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A b) 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
B 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 ofShri B.K. Gadhvi, Member
C 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
D 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
E 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
F 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.

G 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
H Bench in Consumer Educalion and Research Centre and Ors. v.
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER, J.] 883
: ,.
Union of India and Ors., [ 1995] 3 sec 42. Since we are, prima facie, A
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 B
& 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] l 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
c
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 D
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 E
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
F
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 G
...- recommendations of Fifth Pay Commission, the Government had sanctioned
fixed medical allowance of Rs. I 00 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
H
884 SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.

A 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
B 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
C 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
D 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.
E 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
F that on September 13, 1999, Assistant ChiefofPersonnel (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
G 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.
H
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER, l.) 885

It was also stated at the Bar that during the pendency of the writ A
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 B
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 C
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 D
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 E
were made and recommendations were 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- F
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 G
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 H
886 SUPREME COURT REPORTS [2006) SUPP. 4 S.C.R.

A 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.
B 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

c
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
D 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,
E 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
F 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
G keeping in view financial capacity and available means, it has to undertake
its obligations of providing social services including medical faciiities 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
H benefits had been extended from time to time. Regarding medical facilities in
-
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.OI. [CK THAKKER, J.] 887

serious and terminal diseases, it was submitted that in past, such facilities A
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 B
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 C
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 D
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. E
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 F
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 G
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 H
888 SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A petitioner-Confederation is not registered and the petition filed is not
maintainable. In view of the fact that some of the 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.
B
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] I SCC 305. There also, one of the petitioners was a Society
C 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
D 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 Con~titution. We, therefore, reject the preliminary
objection raised by the respondents and hold that the petitioner-Confederation
has locus standi to file the petition.

E 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
F 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 d1:fence personnel have been provided full and free medical
G 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
H ~-
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER, J .] 889

unequal treatments to equals and would infringe Article 14 of the Constitution. A
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 B
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 C
it is legal, 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 Bengalv. Anwar Ali Sarkar & Another, (1952] SCR 284: AIR
(1952) SC 75. In that case, validity of certain provisions of the West Bengal D
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 E
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 legislatiol) must
have universal. application. All persons are not, by nature, attainment F
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 G
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 erbitrary 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
H
890 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 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
B 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
c 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. "

D (emphasis supplied)

Again, in Budhan Choudhry v. State o/Bihar, [1955] I 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,
E 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
distingu.ishes persons or things that are grouped together from others
left out of the group and (ii) that that differentia must have a rational
F relation to the object scught 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. "
G (emphasis supplied)

The principle laid down in Anwar Ali Sarkar and Budhan Chaudhry
has been consistently followed and reiterated by this Court in several
subsequent cases. [See Bidi Supply Co. v. Union of India & Ors., (1956] SCR
H 267 : AIR (1956) SC 479; Ram Krishna Dalmia v. Justice Tendolkar, (1959]
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS"- U.0.1. [CK THAKKER,J] 89 J
•
SCR 279: AIR (1958) SC 538; V.C. Shukla v. State (Delhi Administration), A
[1980] Supp. SCC 249: AIR (1980) SC 1382; Special Courts Bill, Re, (1979]
I SCC 380: AIR (1979) SC 478: [1979] 2 SCR476; R.K. Gargv. Union ofIndia,
(1981] 4 SCC 675: AIR (1981) SC 2138; State ofA.P. & Ors. v. Nallamilli Rami
Reddi & Ors., (2001] 7 SCC 708: AIR (2001) SC 3616; MP. Rural Agriculture
Extension Officers Association v. State of MP. & Anr., (2004] 4 SCC 646 : AIR
~~~- B
In our judgment, therefore, it is clear that every classification to be legal,
valid and permissible, must fulfill the twin-test, namely;

(0 the classification must be founded on an intelligible differentia
which must distinguish persons or things that are grouped together C
from others leaving out or left out; and
(iO 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 D
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 E
if they are treated differently.

Likewise, a classification between defence personnel and other than
defence persm:mel is also reasonable and valid classification. Moreover, it is
clarified by the respondents in the counter-affidavit that for medical facilities F
provided to retired civil servants, there is also a scheme known as the Central
Government 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 G
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 H
892 SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

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
B 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
C 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] I All ER 904: (1969) 2 WLR 337: (1969) 2 Ch D 149. lnAttorney
General of Hong Kong v. Ng Yuen Shiu, [1983] 2 All ER 346 : (1983) 2 AC
D 629], Lord Fraser referring to &hmidt 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
E 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
F 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
G 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
H that after independence, because of several representations made by them
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER, J.] 893

and various efforts, suggestions and recommendations by different Committees A
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 B
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 C
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 ofGujarat, [1991] 4 SCC 106: AIR (1991) SC 2106
: [1991] 3 SCR 936; D.K. Basu v. State a/West Bengal, [1997] l SCC 416: AIR
(1997) SC 610; Visakha v. State ofRajasthan, [1997] 6 SCC 241 : AIR (1997) D
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 E
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 p
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 G
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 H
894 SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A cheerfully willing to sacrifice their lives;
"When you go home,

Tell them for us;

For your to-morrow,
B
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,
C 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,
Our Gods forgotten and our Soldiers slighted".
D
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
E 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 -

Our Armed Forces have won world wide renown for their valour,
dedication and devotion. The achievements of the Armed Forces in
F 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.

G 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
H
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER, J.] 895

the Administration during natural calamities and internal unrest. The A
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
B
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- C
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 D
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 Committee had been set up for the first time after E
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; F
"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....... 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 wit!i all our G
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)
H
896 SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.

A 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 - 3(A)/417S/D(AG-1) dated 14th
B
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-
C 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-
D patient treatment was available to such pensioners.

(c) Families of ex-servicemen were not entitled to any treatment out-
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-
E 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
F personnel for providing in-patient treatment in Service hospitals subject
to the following conditions:-

(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
G
needs of serving personnel.

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

(d) No co•weyance will be provided for journeys from the residence
to the hospital and back; and
H
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER,J.] 897

(e) No special nursing would be admissible. A
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. B
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 tl:e requirement of giving
adequate treatment to the ex-servicemen reporting at the Service C
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 D
staff would also be required as under:-
(i) Officers 33
(ii) Nursing Officers 74
(iii) Other Ranks 312
(iv) Civilians 211 E
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, F
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. G
In Chapter X, certain recommendations have been made for 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."
H
898 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A The Committee then made certain recommendations, inter alia, observing
that the existing facilities in the Military hospitals should be enhanced for ex-
~ervi.cemen and their entitled dependents in a phased manner in the next few
years.

As already noted earlier, in 1983, Regulations for the medical services
B 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:
c Classes Medical attendance Remarks
Admissible
(a) (b) (c)
A. ... ... ... ...
0 B. ... ... ... ...
c. ... ... ... ...

D. ... ... ... ... ,..
E. ... ... ... ...
F. (i) Ex-service As out-patient (a) Treatment is
E personnel in receipt or in a hospital. authorized only for
of a disability the disabilities for
pension and Ex- which pension has
servicemen of the been granted
Indian State Forces excluding cases of
F in receipt of a Pulmonary Tuber-
disability pension culosis, Leprosy
from the Defence and mental
Services Estimates diseases and
for " disability patients requiring
accepted as attribu- any special
G table to or aggra- treatment not
vated by service ordinarily available
with the Indian from service
Armed Forces. sources, such as
radiotherapy.
H
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.O.I. [C.K. THAKKER, J.] 899
~-
(b )Admission may A
be authorized for
the purpose of
observation to
enable the medical
authorities to
arrive at a correct
B
assessment of the
degree of
disability.
(ii) Personnel of F(i) As out-patient or (a) As in F(i)above.
above, who have in a hospital, if (b) Treatment will c
been invalidated out accommodation be discontinued
of service on is available. immediately in
account of a dis- respect of cases
ability accepted as under conside-
attributable to/ ration if the final
aggravated by decision is against D
military service but the findings of the
who are not in Medical Board.
receipt of a
disability pension
for the reason that E
the disability is less
than 20% and
individuals whose
case attributability
has been conceded
by the Medical F
Board but a final
decision in the
matter has snot been
reached.

- G
(iii) Ex-service (i) Domiciliary On relapse of the
personnel invalided treatment as disease.
out of service on out patient. This concession is
account of pulmo- (ii) May be admitted not an entitlement
nary tuberculosis in Military Hospital for indoor hospital
which has been (Cardio Thoracic) treatment for T.B.
H
900 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A accepted as attnbu- Centre), Pune, on trom m11ttary
table to/aggravated the recommen- sources for ex-
by service and for dation of OC of an servicemen.
which disability armed forces
pension has been hospital, if a bed
granted. out of the ten T.B.
B beds reserved for
this category of
personnel is
available.

c G. ... ... ... ...
H. ... ... ... ...
I. ... ... ... ...
J. ... ... ... ...
... ... ... ...
D K.
L. ... ... ... ...
M. ... ... ... ...
N. ... ... ... ...
0. Ex-Service pensioners (i) Free out patient The scope of the
E and their families of treatment ;n the above concessions
deceased service nearest Armed will not include
personnel drawing Forces Hospital treatment for
pension of some kind including the supply pulmonary tuber-
of medicine culosis, leprosy,
necessary for their mental disease,
F
treatment. malignant disease or
any other disease for
(ii) In-patient
which treatment is
treatment in Armed
not ordinarily
Forces Hospital
available from local

-
subject to the
G military sources.
following conditions:

(ii) These conce-
(a) That the disease is
ssions will not be
not incurable.
admissible to the
service pensioners
H
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS"· U.0.1. [C.K. THAKKER,J.J 901

(b) The hospital who are re- A
accommodation could employed in
be made available within Govemment/Semi-
the authorized number Government
of beds and without departments or
detriment to the needs other public or B
of service personnel. private Sector
undertaking which
(c) That the treatment provides medical
will be limited to the facilities to their
facilities available employees.
locally. C
iii) for this
(d) No conveyance will purpose family
be provided for includes wife and
journeys from the un-married children
residence to the I step children I
hospital and back. adopted children D
under 18 years of
·-., (e) No special nursing age are dependent
would be admissible. on the pensioners.
(f) for in patient
treatment, hospital E
stoppages will be as
para 16 of Appendix 5.

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 F
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.

In the affidavit in reply filed by the Union of India, it was stated that G
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. I00 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 H
902 SUPREME COURT REPORTS (20061 SUPP. 4 S.C.R.

, A respect of serious diseases i.e. diseases affecting heart-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
B 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.
C 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:
D "(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 bec~me
members by making a one time contribution. There would be no
E 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. I 00/- presently admissible to them and those who do
F 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
G meJicare 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
H expenditure and reimbursement is fully utilized on yearly basis. It then prescribes ., _
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER,J.J 903
~

rates of contribution in Appendix-A which are as under: A
RATES OF CONTRIBUTION

(a) Pension upto Rs. 3000 Rs. 1800
(b) Pension between Rs. 3001-6000 Rs.4800
B
(c) Pension between Rs. 6001-10000 Rs. 8400

(d) Pension between Rs. 10001-15000 Rs. 12000

-cl (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
c
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 D
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. E

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 F
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 G

- 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 fundamt:.ltal rights H
904 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.
.,.
A 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;
B
"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
c person."

(emphasis supplied)

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

F Reference was made to Bandhua Mukti Morcha v. Union of India,
[ 1984] 3 SCC l 61 : AIR ( 1984) SC 802 wherein Bhagwati, J. (as His Lordship
then was) referring to Francis Coralie Mullin v. Administrator, Union Territory
of Delhi, [1981] 1SCC608: AIR 1981 SC 746 stated;

"It is the fundamental right of every one in this country, assured
G 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 (t) of Article 39 and Articles 41 and 42 and at the least,
therefore, it must include protection of the health and strength of
H
CONFEDERATION OF EX-SERVICEMENASSOCIATIONSv. U.0.1. [C.K. THAKKER,J.] 905

workers men and women, and of the tender age of children against A
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 B
deprive a person of the enjoyment of these basic essentials. Since the
Directive Principles of State Policy contained in Clauses (e) and (t) 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 C
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 D
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 and any existing laws which apply in that E
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. F
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 G
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 sec 627]. The said observations would apply with equal, if H
906 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 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
B 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
c 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
D 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
E shadhanam" (healthy body is the very foundation of all human activities), the
Court observed that -

" ... maintenance and improvement of public health have to rank high
as these are indispensable to the very physical existence of the
community and on the bettem1ent of these depends the bu i Id in g
F of the society of which the Constitution makers envisaged. Attending
to public health, in our opinion, therefore, is of high priority-perhaps
the one at the top".

In National Textile Workers' Union v. P.R. Ramakrishnan, [1983] l SCC
G 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
H changing social concepts and values. If the bark that protects the tree
CONFEDERATION OF EX-SERVICEMEN ASSOC IATIO NS v. U.O.l. [C.K. THAKKER, J.] 907

fails to grow and expand alongwith the tree, it will either choke the A
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 B
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 C
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 D
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 E
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 p
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 "lib1:rty" in
5th and 14th Amendments to the U.S. Constitution and proclaimed;
G
"By the term "life" as here used something more fs meant than
mere animal existence. The 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 H
•
908 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 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)
B
The above observations have been quoted with approval by this Court
in Kharak Singh v. State of U.P., [1964] 1SCR332: 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 ofIndia, [1982] l SCC 271 : AIR (1982) SC 710; Olga Tellis v. Bombay
C Municipal Corporation, [ 1985] 3 SCC 545 : AIR ( 1986) SC 180; State ofH.P.
v. Urned Ram Sharma, [1986] 2 SCC 68: AIR (1986) SC 847; Prabhakaran v.
State a/Tamil Nadu, [1987] 4 SCC 238: AIR (1987) SC 2117; A.R. Antulay v.
RS. Nayak, [1988] 2 SCC 602: AIR (1988) SC 1531; Vikram Dea Singh v. State
of Bihar, [1988] Supp SCC 734 : AIR (1988) SC 1782; Parmanand Katara v.
D 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 ofIndia, [1990] 1SCC613: AIR
(1990) SC 1480; Delhi Transport Corporation v. Delhi Transport Corporation
E Mazdoor Congress, [1991] Supp 1 SCC 600(735): AIR (1991) SC 101; Kapila
Hingorani v. State of Bihar, [2003] 6 SCC l; 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
F 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. l ,800 to Rs.18,000 which cannot be said to be excessive,
disproportionate or unreasonably high. The question, therefore, is whether
G 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-past and present. It has also co undertake several other
H activities as a 'welfare' State. In the light of financial constraints and limited '
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.0.1. [C.K. THAKKER, J.) 909

means available, if a policy decision is taken to extend medical facilities to ex- A
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 lII of the Constitution.

In State ofPunjab v. Ram Lubhaya Bagga, [1998] 4 SCC 117: AIR 1998 B
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 C
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." D
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- E
servicemen who are getting pension have been asked to become members of
ECHS by making 'one time contribution' of reasonable amount (ranging from
Rs.l ,800/- to Rs.l 8,000/-). To us, this cannot be held illegal, unlawful, arbitrary
or otherwise unreasonable.

Observations made by this Court in the cases relied upon by the F
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- G
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 H
910 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 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.
B 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
C which is a 'diminished category', retired prior to January l, 1996.

Taking into account all these facts and the circumstances in their entirety,
on March 8, 2006, we passed the following order:

"Mr. K.S. Bhati, learned counsel appearing for Petitioner No. l,
D 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.
E
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
F Education Research Centre & Ors. v. 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
G 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 !st January,
1996. It is evident that this class of ex-servicemen is a diminishing
H
CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS v. U.O.I. [C.K. THAKKER, J.] 911

., .
category. The Government of India, Ministry of Defence, shall consider, A
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-servieemen of the category with which we are concerned,
i.e., those who have retired prior to !st 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, B
were not making any payment so as to enjoy the benefit of medical
care. Alternatively, the Government can also consider making payment
i
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 C
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, ifthe Government decides to
waive it or pay it, without it being treated as a precedent, in 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 D
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 E
contribution' on behalf oi 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 F
category of ex-servicemen. No such affidavit has been filed by the Government
t 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 G
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 H
912 SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.

A 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
B 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.
c D.G. Writ Petition Partly allowed.