THE HIGH COURT OF ORISSA : CUTTACK. W.P.(C) No.7532 of 2011 In the matter of an application under Articles 226 and 227 of the Constitution of India. ____________ Orissa High Court Retired Judges’ Association and Another. … Petitioners - versus Union of India, Ministry of Law & Justice and two others. … For petitioners For opp. parties Opposite Parties --- Mr. J.Patnaik, Sr. Advocate, M/s. H.M.dhal, B.Mohanty, T.K. Patnaik, A. Patnaik, R.P.Ray, Ms. Rizvi, & B.S. Rajguru.. -- Mr. S.D. Das, Asst. Solicitor Gen. (for O.P. No.1) Mr. R.K. Mohapatra, Govt. Adv. (for O.P.Nos.2 &
3) ______________ PRESENT ; THE HONOURABLE CHIEF JUSTICE MR V. GOPALA GOWDA AND THE HONOURABLE MR. JUSTICE B.N. MAHAPATRA ______________________________________________________________________ Date of judgment - 20. 03. 2012 ______________________________________________________________________ V. Gopala Gowda, C.J.Retired This writ petition has been filed by the Orissa High Court Judges Association (hereinafter called “the Association”.) represented by its President challenging the action of the opposite parties with regard to non-payment of certain facilities and allowances like medical facility, domestic help allowance, secretarial assistance and telephone charges and seeking for issuance of a direction to suitably 2 modify the order under Annexure-3 by extending medical facilities as was being available to them during the incumbency of judgeship and enhance the domestic help allowance and further to sanction secretarial assistance and telephone allowances to the members of the Association urging various facts and legal contention.
2. The case of the petitioner-Association is that it is a registered association of retired judges of the Orissa High Court which espouses the cause of the judges who were appointed by the President of India in terms of Article 217 of the Constitution of India and have retired on attaining the age of superannuation i.e. 62 years. Article 220 of the Constitution of India debars a permanent Judge from practicing in the same High Court after retirement. A judge during his tenure is entitled to salary and other allowances as specified in part-D of the 2nd schedule in terms of Article 221 of the Constitution of India. A judge also receives many privileges during his tenure, however, after retirement a judge is paid only pension and not other allowances and privileges which he was receiving during his incumbency. It is stated by the petitioners that a judge during his incumbency leads a dignified life and is used to a distinct lifestyle. No sooner a judge retires all the privileges and facilities are withdrawn and he is left in lurch. Further, because of the ageing factor a retired judge needs more help and assistance so that he would be useful to render services to the society. It is also mentioned that very often a retired judge associates himself with various social activities in as much as the public at large repose extreme trust and endow them with various responsibility and such judges are looked upon differently than others. Therefore, to facilitate a retired judge to be more functional in conformity 3 with the dignity of the distinguished office he was holding all the facilities and privileges which he was receiving during his incumbency should be provided. In other words a judge becomes immobile; no sooner the privileges and facilities are withdrawn he had to keep himself away from the even tempo of the society. Therefore, taking all these factors into consideration various State Governments have provided medical facilities, domestic help, secretarial assistance, telephone allowances etc. to the retired judges of the High Court and this has been so done keeping in view the fact that a retired judge can play useful role in the society provided his services are utilized by either the State Government or State Legal Services Authority. It is further stated that granting medical facilities and other privileges to the retired judges was the subject matter of long deliberation throughout the country and in many states the same has already been acceded to. In the meeting of 2nd level monitoring committee held on 11.08.2009, which was presided over by the Hon’ble Chief Minister, the then Hon’ble Acting Chief Justice of Orissa High Court suggested that medical facilities to retired Judges as available in other states should also be made available to the retired Judges of this Court. Accordingly it was resolved that the Principal Secretary, Law Department, Government of Orissa would collect detail information from other States/ High Courts regarding availability of medical facilities to the retired High court judges and those information shall be placed before the Hon’ble Chief Minister. It is stated that the petitioner-Association addressed a representation dated 25.8.2010 under Annexure-2 series to the Chief Justice of this Court stating therein that in absence of the facilities such as medical assistance, domestic help, secretarial assistance and telephone 4 charges it is extremely difficult on the part of the members of the petitioner-Association to lead a dignified life. In the said representation the petitioner-association had enclosed a chart showing the facilities which are being extended to the retired judges of other High courts. It is further stated that initially the Government of Orissa declined to accede to the proposal for medical assistance and domestic help, however, vide letter dated 14.02.2011 (Annexure-3) the Government of Orissa in the Home Department has communicated to the Registrar General of this Court indicating therein that the Government has sanctioned domestic help allowance @ Rs.2,500/- per month and medical allowance @ Rs.1,500/- per month to the retired judges and chief Justices of Orissa High court w.e.f. 01.01.2011.
3. It is submitted by Mr. J.Patnaik, learned Sr. Counsel on behalf of the petitioners that the retired judges are entitled to medical facilities as was being enjoyed by them while in office and thus the benefits accorded under Annexure-3 is grossly inadequate. Further, the secretarial allowance and telephone allowance have not been extended which has been causing serious hardship in the retired life of a retired Judge. Learned Sr. Counsel placed reliance on the letter dated 07.12.2005 under Annexure-4 sent by the Registrar General of Kerala High Court to the Registry of this Court wherein it is indicated that the medical reimbursement facilities are being provided to the retired judges of Kerala High Court wherein the retired judges are entitled to free medical treatment in the State and reimbursement of expenditure incurred for the purchase of medicine and for treatment, which facilities not available in the Government Hospital. Apart from that, the Hon’ble 5 Supreme Court in W.P.(C) No.1022 of 1989 (All India Judges Association & Ors. Vs. Union of India & Ors.) vide order dated 02.08.2010 has accepted the recommendation made by Justice Padmanabhan Committee and directed that retired judicial officers would be entitled to fixed monthly medical allowance @ Rs.1,500/- per month and so far as family pensioners are concerned the medical allowance has been fixed at Rs.750/- per month. In regard to domestic help allowance the same was directed to be increased from Rs.1,250/- to Rs.2,500/- per month and accordingly all the retired judicial officers are entitled to domestic help allowance of Rs.2,500/- per month and medical allowance of Rs.1,500/per month. However, the Government of Orissa, by virtue of the order under Annexure-3 sanctioned the domestic help allowance and medical allowance as is admissible to the retired judicial officers. Therefore, it is submitted that, the approach of the State Government is highly unreasonable as the benefits are not extended at par with the retired Judges of the other High Courts in the Country. Learned Sr. Counsel for the petitioner-Association further submitted that the Judges of this High Court who have been transferred to other High Courts and have retired are receiving such medical facilities and all other allowances as available to sitting judges but the judges appointed and retired from this Court are not receiving the same benefits which action of the State Government is are discriminatory and violative of Article 14 of the Constitution of India.
4. One counter affidavit has been filed on behalf of the Union of India sworn to by the Under Secretary in the Department of Justice, Ministry of Law & Justice, wherein it is stated that Section 23-D of the High Court Judges (Salaries and Conditions of Service)Act”
6. regulates the medical facilities to the retired Judges of the High courts. Under Section 23-D(1), the Central Government has extended the medical facilities under the Central Government Health Scheme (CGHS) to the retired Judges of the High courts, wherever these facilities are available. The Central Government has not imposed any condition or restriction upon the State Governments under Section 23-D(2)., therefore, it is stated that the State Government is free to extend any facility of medical treatment to the retired Judges of their respective High Court. It is further submitted that keeping in view the difficulties of the retired Judges who retired from the High Court of one State and settled down in other State, the Law & Justice Department vide letter dated 14.12.1989 requested all the State Governments to consider providing medical facilities to those Judges who retire from the High court of one State and settled down in another State after retirement if those places are not covered by the CGHS. It is clearly stated that in the past, various requests were received from certain retired Chief Justices of High Courts and other sources for grant of post retiral benefits like secretarial assistance and telephone facilities etc. to retired High Court Judges on the analogy that similar post retrial benefits are being provided to retired Chief Justices of India/Judges of Supreme Court. The said proposals for extending such facilities to retired High Courts Judges were carefully considered but not agreed to by the Union of India.
5. It is stated by the opposite party No.1 that all the facilities and allowances available for a sitting Judge cannot be extended to a retired Judge and a reasonable distinction has to be made. Further, as regards the averments made by the petitioner-Association at paragrap”
10. of the writ petition it is stated that the recommendation of Justice Shetty Commission for grant of domestic help allowance of Rs.750/- per month to the retired judicial officers was implemented by the Department consequent upon a direction of the Hon’ble Supreme Court in the case of All India Judges Association (supra). However, the proposal of implementing the recommendation of Justice Padmanabhan Committee in respect of judicial officers of Union Territories is under consideration of the Government.
6. A counter affidavit has also been filed on behalf of the opposite party No.2-Government of Orissa, duly sworn to by its Under Secretary, Home Department, traversing the averments made in the writ petition. It is stated by the opposite party No.2 that according to extract of the Resolution of the meeting chaired by Hon’ble Chief Minister, the Law Department have sought for the information from the Registry of all High Courts in India regarding provision of medical and other facilities extended to retired Judges and accordingly the Registry of some High Courts have furnished their response. O.P. No.2 was furnished a compilation of the views of different High Courts by the Law Department. On examination, as it involves, financial implications, the matter was referred to Finance Department for their views. However, they have sought for clarifications/detailed information on certain points, more particularly on Andhra Pradesh pattern of extending such facilities and allowances. Therefore, the O.P. No.2 is in correspondence with the Registry of Hon’ble High Court of Andhra Pradesh. It is further submitted that the Government of Orissa is very much concerned with the facilities to be provided to the retired Judges of the State and considering 8 the same, the Government of Orissa vide aforesaid letter under Annexure3 extended the Medical allowances and domestic help allowance to the retired Judges, however, due to the resource crunch of the State, Government is unable to provide all the facilities and allowances to the retired Judges as demanded by the petitioner-Association. However, in comparison to allowance structure of another High Court, the structure provided by the Government of Orissa is on higher side and it has been done in due consultation with the Finance Department taking into account the financial resources of the State. The allowances given to the retired Judges of this High Court are no less in comparison to the quantum of allowance given to retired Judges of some other High Courts. Therefore, it is submitted that the petitioner-Association cannot say that the allowances extended to them are less in comparison to the other High Courts. It is further submitted that the State Government has the highest regard for the retired Judges and therefore, from time to time, the State Government is also reviewing the facilities and benefits given to the retired Judges so as to ensure that they lead a dignified and happy retired life and provisions of medial facilities and other allowances are still under the active consideration of the State Government.
7. We have heard learned counsel on behalf of the parties and perused the record. With reference to the aforesaid rival factual & legal contentions, the following points would arise for consideration by this Court. (1) As to whether the petitioner-Association is entitled for the relief of issuance of a direction to the Government of Orissa to modify the order under Annexure-3 for extending medical facilities and domestic help 9 allowance and further direction to sanction and disburse telephone allowance and secretarial assistance allowance to the members of the petitionerassociation ?. (2) 8. What order ?. It is an undisputed fact that the retired Judges have discharged their constitutional functions in the State to the public litigant to protect the Rule of Law and while discharging their functions as Judges and Chief Justices of the High Courts in the country, their pay scales and all other allowances throughout the country is uniform. After their retirement, all the High Court Judges and Chief Justices are governed under the provisions of the High Court Judges (Salaries and Conditions of Service) Act, 1954. The Central Government, under Section 23-D(1) of the said Act, has extended the medical facilities under the Central Government Health Scheme (CGHS) to the retired Judges of the High Courts, wherever these facilities are available. However, the Central Government has not imposed any condition or restriction under Section 23-D(2) upon the State Governments to extend any facility of medical treatment to the retired Judges of their respective High Court. Therefore, it is clear that the State Government is free to provide the medical treatment facilities to the retired Judges and Chief Justices of this Court keeping in view the difficulties in getting medical treatment after retirement at par with CGHS. Therefore, it is requested by the petitionerAssociation that the required medical facilities as are being provided to the retired Judges by the other States, are required to be provided by the State Government”
9. It would be worthwhile to extract the relevant facilities which are being provided by some other High Courts as per the comparative tabular chart annexed by the petitioner-Association under Annexure-2 series to the writ petition. FACILITIES EXTENDED TO THE RETIRED JUDGES IN DIFFERENT HIGH COURTS Name of High Court. Medical Facilities Attendant Allowance Andhra Pradesh Medical facilities are extended vide Notification dated 8.12.2005 to the retired C.J.and judges and their family members. Medical facilities under consideration of the Government. Available to a retired judge as are available to the sitting judge. No decision has been taken. Secretarial and Telephone allowance No decision has been taken. Under Consideration of the Government. Under Consideration of the Government. Allowance of Rs.5000/- per month from Feb.2009 for a Sebak. Orderly allowances of Rs.2000/- per month. No separate allowance is provided. Bombay Calcutta Chhatisgarh Jharkhand Medical expenditure and cost of medicines as per order of the Govt. Law & Legislative affairs. Jharkhand High Court Judges (Medical facilities) reimbursement Rules, 2004 is applicable to retired judges as per the Rule 3(F). Karnataka Kerala Free medical treatment in all Govt. Hospital in the State and for reimbursement of expenditure incurred for purchase of Orderly allowance of Rs.2000/- Servant allowance @ Rs.2,500/- per month. No decision as regards Sebak has been taken. Secretarial allowance of Rs. 3000/- and Telephone allowance of Rs.1,500/- per month. Telephone allowance of Rs.750/-. Telephone charges @ Rs.1,000/- per month. No decision has been taken for secretarial allowance and telephone charges. 11 Madhya Pradesh Punjab Haryana Rajasthan Sikkim (Gangtok) Uttar Pradesh 10. & medicines and treatment not available in the Government Hospital. Decision of Govt. is awaited regarding reimbursement of Medical Expenses. The Court provides full medical reimbursement to the retired judges and members of their family. Retired judges are entitled to get medical facilities as per rule 11 of the Rajasthan Civil Services (Medical reimbursement) Rules, 1970 as well as under the Rajasthan State Pensioner’s Concession Scheme. Same medical benefit as are applicable to a sitting judge. The decision of Govt. is awaited for orderly allowance of Rs.2000/- per month …. Decision of Government is awaited for Secretarial allowance of Rs.3000/- per month and telephone charges of Rs.1500/- per month. Secretarial assistance is provided. High Court has directed the State Government to pay a sum of Rs.7,500/- per month to meet expenses of domestic help/peon, driver, telephone expenses and secretarial allowance etc. One residential orderly (sebak/cook) vide notification dated 24.11.99. Orderly allowance of Rs.2000/- per month. Retired Judge shall be entitled to the services of Stenographer Grade-II in lieu of it he may get Rs.3000/- per month. Secretarial allowance of Rs.3000/- per month and Telephone Allowance of Rs.1,500/- It is needless to mention here that during the tenure as a sitting Judge, the pay scales and other allowances are almost equal all over the country and the services of judges are governed in equal manner. 12 Therefore, after the retirement, it would be feasible for all the State Governments to extend the facilities such as medical facilities, orderly/domestic help allowance, telephone charges to the retired Judges of the High Courts throughout the country uniformly so as to enable them to lead a dignified life after their retirement for the reason that after retirement of a permanent judge or Chief Justice, there is prohibition for their practice in the same High Court from which they retired. Therefore, after the retirement of Judges or Chief Justices, they are required to be treated with due respect and the State Governments have got constitutional obligation to see that they lead a dignified & happy retired life of their remaining period for having rendered service to the public litigant and facilitated the State Government for good governance. However, from the chart pre-page, it is seen that various State Governments are providing medical facilities and other allowances in different manner to the retired High Court judges of their State. Vide Home Department Letter No.7056 dated 14.02.2011 the Government of Odisha extended the medical allowances to the retired Chief Justices and Judges of this court @ Rs.18,000/- P.A. w.e.f. 14.02.2011, which is very meager amount taking into consideration of devaluation of a rupee and cost of the facility. In the old age, different ailments may be there and it may not be possible to meet the actual medical expenses with the said amount of Rs.18,000/- per annum. As it appears from the above chart, it is a fact that throughout the country uniform medical facilities are not provided to the retired Judges by the State Governments and different State Governments are providing different medical facilities to the retired Judges as shown in the chart. The Odisha State is coming under the 13 Eastern region of the country. Therefore, we think it would be appropriate to direct the Government of Odisha to take into consideration the medical facilities extended to the retired Judges by the States coming under the Eastern region of the country and take a decision in extending the medical benefits to the members of the petitioner-Association taking into account the Central Government Health Scheme. We think, it will be in conformity with Articles 14 and 21 of the Constitution of India. The Supreme Court in catena of cases has held that right to lead a happy life includes the right to health which is guaranteed under Article 21 of the Constitution of India. In the cases of State of Punjab Vs. Mohinder Singh Chawla, reported in AIR 199.SC 1225.and Consumer Education & Research Centre & ors. Vs. Union of India & Ors., AIR 199.SC 922.the Supreme Court has held that right to life includes the right to health.
11. It is an undisputed fact that during incumbency Judges and Chief Justices of the High Courts lead a distinct lifestyle being provided with many facilities and assistance including telephone facilities. Immediately after retirement if all those facilities are withdrawn, it will be definitely difficult on the part of a retired Judge to lead a dignified and happy life without proper assistance from the State Government as it is its constitutional function. Therefore, in our view orderly/domestic assistance as well as telephone facility is also the basic requirement of a retired Judge for decent living. To maintain a good healthy life after retirement as a Judge the minimum requirement is to see that proper medical facilities are provided by the State Government to lead a healthy and happy life during old age, domestic help/assistance is required to assist in the day to day work, and telephone facilities/allowance as an emergency service required 14 for them. These three assistance are very much essential to a person who has already led a dignified life and retired from the post and at this stage it is the duty of the State Government to provide the above facilities to the retired Judges in the State. Therefore, taking into consideration of all the aforesaid aspects, the State Government is hereby directed to modify the order dated 14.2.2011 under Annexure-3 accordingly and further to provide telephone allowance taking into account such facility/allowance extended by the other States under the Eastern region of the country by framing necessary Rules and guidelines as early as possible, preferably within a period of two months from the date of receipt of a copy of this order. However, such facilities and allowance shall not be made available to the retired Judge if he/she is getting such benefit by virtue of holding any assignment/post/commission etc. Registry is directed to communicate a copy of this judgment to the Chief Secretary to the Government of Odisha for taking necessary steps in this regard and report compliance. The writ petition is allowed to the extent indicated above. Rule issued. ……………………….. Chief Justice B. N. Mahapatra, J.I agree. ………………………….. Judge Orissa High Court, Cuttack The 20th day of March, 2012/A.Dash