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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos. 9020-9021  OF 2012  

(Arising out of SLP (C) Nos. 15739-15740 of 2008)

The Secretary, Ministry of Health & Family Welfare,  Government of Maharashtra                 … Appellant

Versus

S.C. Malte & Ors.                                         … Respondents

J U D G M E N T

A. K. PATNAIK, J.

Leave granted.

2. I have read the judgment of my learned brother Justice  

Swatanter Kumar but with due respect to his learning I am  

unable to persuade myself to agree with his conclusion that  

the  appeals  have  no  merit  and  with  the  directions  in  his  

judgment.  In my view, the appeals should be allowed and

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the impugned orders of the High Court should be set aside  

for reasons which I shall indicate after setting out the facts.

3. The facts very briefly are that Section 23D of the High  

Court Judges (Salaries and Conditions of Service) Act, 1954  

(for short “the Act”) provides for medical facilities for retired  

Judges.  Sub-section (1) of Section 23D provides that every  

retired Judge shall be entitled for himself and his family to  

the same facilities as respects medical treatment and on the  

same  conditions  as  a  retired  officer  of  the  Central  Civil  

Services, Class-I and his family, are entitled under any rules  

and orders of the Central Government for the time being in  

force.  A retired officer of the Central Civil Services, Class-I  

and  his  family  are  entitled  to  medical  facilities  under  the  

Central  Government  Health  Scheme  (for  short  “the  CHGS  

Scheme”).  Justice S.C. Malte and four other retired Judges  

who  after  retirement  were  residing  in  Aurangabad,  

Maharashtra, addressed a letter to the Chief Justice of the  

Bombay High Court mentioning therein the difficulties of the  

retired  Judges  in  getting  the  medical  facilities  under  the  

CGHS  Scheme  including  the  fact  that  the  facilities

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thereunder were provided at only three cities in Maharashtra,  

namely, Mumbai, Nagpur and Pune.  This letter was treated  

as suo motu Writ Petition No.6285 of 2005 and an order was  

passed  by  the  High  Court  on  17.07.2006  directing  the  

Government  of  Maharashtra  to  frame  rules  for  medical  

treatment  and  reimbursement  of  retired  Judges  of  the  

Bombay  High  Court.   The  Government  of  Maharashtra  

drafted the Maharashtra Retired High Court Judges (Facilities  

for Medical  Treatment)  Rules,  2006,  pursuant to the order  

dated 17.07.2006 of the Bombay High Court and placed the  

Draft  Rules  of  2006  before  the  High  Court.   The  amicus  

curiae appearing for the suo motu writ petitioners, however,  

suggested  a  change  in  the  Draft  Rules  of  2006  and  the  

change was that the retired Judges shall be entitled to the  

medical facilities and reimbursement provided in the Draft  

Rules whenever the CGHS Scheme is not availed of and the  

High  Court  disposed  of  the  writ  petition  by  order  dated  

15.01.2007 with the direction to the State Government  to  

either notify the Draft Rules in the form suggested by the  

amicus  curiae or  amend  the  G.R.  for  medical  benefits  to

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sitting  Judges  and  extend  the  same  benefits  also  to  the  

retired Judges in exercise of its power under sub-section (2)  

of Section 24 of the Act.  The Government of Maharashtra  

(the appellant herein) then filed Civil Application No. 73 of  

2008 for review of the order dated 15.01.2007, but by order  

dated  22.04.2008  the  High  Court  rejected  the  prayer  for  

review and directed the State Government to comply with  

the  order  dated  15.01.2007  of  the  High  Court  within  two  

months.  Aggrieved, the appellant filed this appeal against  

the order dated 15.01.2007 passed in suo motu writ petition  

No.6285 of 2005 and the order dated 22.04.2008 rejecting  

Civil Application No.73 of 2008.

4. Section 23D of the Act which is titled “Medical facilities  

for retired Judges” is extracted hereinbelow:

“23D(1) Every retired Judge, shall, with effect from  the  date  on  which  the  High  Court  Judges  (Conditions  of  Service)  Amendment  Act,  1976,  receives the assent of the President be entitled for  himself  and  his  family,  to  the  same facilities  as  respects  medical  treatment  and  on  the  same  conditions as a retired officer of the Central Civil

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Services, Class-I and his family, are entitled under  any rules and orders of the Central Government for  the time being in force.

(2) Notwithstanding anything in sub-section (1) but  subject to such conditions and restrictions as the  Central Government may impose a retired Judge of  the High Court for a State may avail, for himself  and his family, any facilities for medical treatment  which the Government of that State may extend to  him.”

5. It  will  be  clear  from  language  of  sub-section  (1)  of  

Section 23D of the Act quoted above that every retired Judge  

is entitled for himself and his family, to the same facilities as  

respects medical treatment and on the same conditions as a  

retired officer  of the Central  Civil  Services, Class-I  and his  

family, are entitled under any rules and orders of the Central  

Government for the time being in force.  Sub-section (2) of  

Section  23D  of  the  Act,  however,  provides  that  

notwithstanding anything  in  sub-section (1)  but  subject  to  

such conditions and restrictions as the Central Government  

may impose a retired Judge of the High Court for a State may

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avail,  for  himself  and his  family,  any facilities  for  medical  

treatment which the Government of that State may extend  

to him.  Thus, under sub-section (2) of Section 23D of the  

Act, the power is vested in the Government of the State to  

extend facilities for medical treatment to a retired Judge of  

the High Court for that State and his family different from the  

facilities  provided  to  a  retired  officer  of  the  Central  Civil  

Services,  Class-I and his family.  This statutory power is that  

of the State  Government  and cannot be  exercised by the  

High  Court  under  Article  226  of  the  Constitution.   The  

appellant, therefore, was right in urging a ground in these  

appeals that the High Court had no jurisdiction to direct the  

State  Government  to  frame  any  particular  rule  regarding  

medical facilities of the retired Judges of the Bombay High  

Court.

6. Though, there are several decisions of this Court on the  

point  that  the  legislative power or the  rule  making power  

cannot be exercised by the Court either under Article 226 or  

under  Article  32  of  the  Constitution,  I  may  only  cite  the

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decision of this Court in  Supreme Court Employees Welfare  

Association v. Union of India (AIR 1990 SC 334).  In this case,  

writ  petitions were filed by the Supreme Court  Employees  

Welfare  Association  and  others  seeking  higher  pay  scales  

and the Attorney General for India appearing for the Union of  

India  contended  inter  alia that  this  Court  cannot  issue  a  

mandate to the President of India to grant approval to the  

rules framed by the Chief Justice of India relating to salaries,  

allowances, leave and pensions of the officers and servants  

of the Supreme Court and this Court held that there can be  

no  doubt  that  an  authority  exercising  legislative  function  

cannot be directed to do a particular act and the President of  

India  cannot  therefore  be  directed  by  the  Court  to  grant  

approval to the proposals made by the Registrar General of  

the Supreme Court, presumably on the direction of the Chief  

Justice of India.  Hence, neither the High Court in exercise of  

its power under Article 226 of the Constitution nor this Court  

under Article 32 or Article 136 of the Constitution can direct  

the State Government to grant particular medical facilities to  

a retired High Court Judge when sub-section (2) of Section

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23D of the Act vests such power on the State Government to  

grant medical facilities other than those mentioned in sub-

section (1) of Section 23D of the Act.

7. In  Kuldip Singh v.  Union of India [JT 2002 (2) SC 506],  

the medical facilities for retired Judges of the Supreme Court  

were in  issue.   Section 23C of  the  Supreme Court  Judges  

(Salaries and Conditions of Services) Act, 1958, provides for  

medical  facilities  for  retired  Judges.   This  Section  23C  

provides that every retired Judge shall be entitled, for himself  

and his family, to the same Central Civil Services Class-I and  

his  family,  are entitled under  any rules  and orders  of the  

Central Government for the time being in force.  The Central  

Government  had  made  the  Supreme  Court  Judges  Rules,  

1959 for sitting Judges of the Supreme Court and Rule 5 of  

these Rules provides for facilities for medical treatment and  

accommodation in hospitals and the proviso to Rule 5 stated  

that  the  medical  expenses  shall  be  reimbursed  on  

prescription of government  doctors/hospitals  or  (registered  

medical) practitioners/private hospitals by the Registry of the

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Supreme Court of India.  This Rule 5, however, did not apply  

to retired Judges.  Justice Kuldip Singh, a retired Judge of the  

Supreme Court, filed a writ petition praying for a declaration  

to the effect that the proviso to Rule 5 of the Supreme Court  

Judges Rules, 1959, should be made applicable to the retired  

Judges of this Court and that the provisions of Section 23C of  

the  Supreme  Court  Judges  (Salaries  and  Conditions  of  

Services) Act, 1958, should be struck down.  While the writ  

petition  was  pending  before  this  Court,  the  Central  

Government issued a memorandum dated 06.02.2002 which  

stated  that  it  had  been  decided  in  consultation  with  the  

Ministry of Law, Justice and Company Affairs, Department of  

Justice,  to  delegate  powers  of  relaxation  of  rules  for  

sanctioning  medical  reimbursement  claims,  in  respect  of  

retired  Chief  Justices  of  India  and  Judges  of  the  Supreme  

Court  holding  CGHS  pensioner’s  card  to  the  Registrar  

General of the Supreme Court who will exercise this power  

with the prior  approval  of the Chief  Justice of India  or  his  

nominee and the reimbursement of medical expenses to the  

retired  Chief  Justices  of  India  and  Judges  of  the  Supreme

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Court holding CGHS pensioner’s card would also be made by  

the  Supreme  Court  Registry.   In  view  of  the  aforesaid  

memorandum  dated  06.02.2002  issued  by  the  Central  

Government, Justice Kuldip Singh did not press the prayer in  

the  writ  petition  and  the  writ  petition  was  disposed  of  in  

terms of the said office memorandum.  This was thus a case  

where the Central Government was of the opinion that the  

same facilities should be made available to the retired Judges  

of the Supreme Court and their families and had accordingly  

issued an office memorandum to that effect and this was not  

a case where this Court in exercise of judicial powers under  

Article  32  of  the  Constitution  directed  the  Central  

Government  to  grant  particular  medical  facilities  to  the  

retired Supreme Court Judges.

8. It  has  been  brought  to  our  notice  by  the  learned  

Additional Solicitor General  Mr. Garuab Banerji  that in fact  

some of the State Governments in exercise of their powers  

under sub-section (2) of Section 23D of the Act are providing  

the same medical  facilities  and medical  reimbursement  to

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retired  Judges and their  families  as  are being provided to  

sitting Judges of the High Court and their families.  In Jammu  

& Kashmir, by virtue of the State Government order dated  

19.02.2006, retired Judges are entitled to the same benefits  

as are available to the sitting Judges of Jammu & Kashmir  

High  Court.   In  Gujarat,  the  Gujarat  Minister’s  (Medical  

Attendance and Treatment) Rules 1964 have been extended  

to retired Judges of the High Court and the powers of the  

State  Government  under  these  Rules  with  respect  to  

reimbursement have been delegated to the Chief Justice of  

the Gujarat High Court for sanctioning and reimbursing the  

expenditure  for  both  sitting  and  retired  Judges  and  their  

family  members.   In  Andhra  Pradesh,  the  Government  of  

Andhra Pradesh has extended the medical  benefits  to the  

retired Judges of the High Court at par with sitting Judges of  

the High Court of Andhra Pradesh.  In Madhya Pradesh, the  

Chief Justice of the High Court sanctions the reimbursement  

of the medical bills of the retired Judges of the High Court  

pursuant to the orders passed by the State Government.  In  

Uttar Pradesh, the medical facilities to the retired Judges of

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the Allahabad High Court are the same as those available to  

the sitting Judges of the High Court.  In the light of these  

provisions  regarding  medical  facilities  in  other  States,  the  

Government of Maharashtra must consider extending better  

medical facilities to the retired Judges of the Bombay High  

Court, but what exactly should be the provisions for medical  

facilities can only be decided by the State Government  in  

exercise of its powers under sub-section (2) of Section 23D of  

the Act.

9. In my view, therefore, the impugned orders of the High  

Court should be set aside and the appeal should be disposed  

of with the recommendations in this judgment.  

.……………………….J.                                                            (A. K. Patnaik)

New Delhi, December 13, 2012.   

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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.   9020-9021  OF 2012 (Arising out of SLP (C) Nos.15739-15740 of 2008)

Secretary, Ministry of Health & Welfare Government of Maharashtra …  Appellant

Versus

S.C. Malte & Ors. … Respondents

J U D G M E N T

Swatanter Kumar J.

1. Leave granted.

2. Some of the former Judges of the Bombay High Court,  

particularly those who are settled at Aurangabad, moved a  

representation  to  the  Chief  Justice  of  that  High  Court  

explaining the difficulties faced by them in getting medical  

facilities and difficulties in respect of reimbursement of the  

expenses on medicines.  These former Judges also included  

Judges who were appointed to the Bombay High Court but

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were subsequently transferred under the transfer policy to  

other High Courts.  After their tenure, their efforts to resolve  

these issues obviously did not result in bringing about any  

fruitful result.  In this representation, they also referred to  

various judgments under which the full reimbursement was  

provided under different rules as well as disparities that were  

prevalent in this respect, in different States of the country.  

This representation came to be treated as a  suo motu Writ  

Petition on the appellate side of the Bombay High Court.  In  

this writ  petition, on 13th October,  2005, after  hearing the  

counsel  appearing  for  the  parties,  the  Court  noticed  that  

some hospitals had been empanelled by the Government as  

approved hospitals under its Scheme.  It was noticed in the  

same  order  that  the  provisions  under  the  Central  

Government  Health  Scheme  (‘CGHS’,  for  short) are  

inadequate and under the scheme only a few hospitals  in  

selected cities are recognized for reimbursement of medical  

treatment.  It was also mentioned in the letter sent to the  

Chief  Justice  of  the  Bombay  High  Court  that  government  

hospitals in Aurangabad did not have the facilities of proper

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diagnosis  and  treatment  for  certain  serious  ailments  and  

CGHS had not been extended to Aurangabad where all the  

said former Judges had settled after their retirement.   

3. The contention of the learned counsel appearing for the  

Union of India is that where CGHS has not been extended,  

there  the  former  Judges can take  the  treatment  from the  

government hospitals and if any treatment is not available in  

the government hospitals, then they would be at liberty to go  

to any hospital to which they are referred to by the doctors of  

the government hospitals.  Having noticed these difficulties  

and  the  practical  problems  which  had  really  become  a  

matter of great concern for the High Courts and the former  

Judges of the High Courts,  the Court  passed the following  

interim order:

“Meanwhile,  the Hon’ble Retired Judges  would  be  permitted  to  get  medical  treatment  from  any  of  the  hospital  mentioned  in  paragraph  4  on  being  referred  by  a  Doctor  of  Government  Hospital and obviously their bills shall be  reimbursed expeditiously.”  

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4. The Court passed another order dated 23rd June, 2006  

laying  down  the  procedure  that  should  be  adopted  for  

dealing  with  the  medical  bills  of  the  former  Judges  and  

directed as under:

“Neither  the  State  Government  nor  the  Central  Government  have  challenged  that order so far.  This being the position,  now the modalities of actual working will  have  to  be  set  down.   In  view of  this  State of affairs,  we propose to pass an  order  whereby  as  in  the  case  of  the  retired  Supreme  Court  Judges  as  permitted by the Central Government by  its  office  Memorandum  dated  06.02.2002,  medical  bills  of  the  retired  High Court judges at Aurangabad will be  signed by the Registrar (Administration)  and countersigned by the medical officer  and  then  passed  by  Registrar  General.  The Officers shall certify the bills whether  for indoor treatment or for the purchase  of medicines.  The bills will be cleared by  the State Government to begin with and  thereafter  the  Central  Government  will  reimburse the amount paid by the State  Government.  We would like the Central  Government  Counsel  and  the  State  Government Counsel to react on this, if  at  all  there  are  any  difficulties  in  the  working of this procedure.”

5. The case remained pending before the Court and during  

the hearing of the petition on 7th July, 2006, it was stated on

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behalf of the State Government that the Government was in  

the  process  of  framing  Rules  in  compliance  with  the  

directions contained in  the  orders  of  the  Court  dated 13th  

October, 2005 and 23rd June, 2006.  

6. Vide  its  order  dated  17th July,  2006,  the  High  Court  

directed the State Government to frame Rules within three  

months  and  continued  the  operation  of  the  interim  order  

dated 13th October, 2005.  Pursuant to the directions of the  

Court and in exercise of the powers conferred under Section  

23D(2) of The High Court Judges (Salaries and Conditions of  

Service)  Act,  1954  (for  short,  the  ‘Act’),  the  State  of  

Maharashtra framed the Rules titled the Maharashtra Retired  

High Court  Judges (Facilities  for  Medical  Treatment)  Rules,  

2006 (for short, the ‘draft Rules’).  These draft Rules were  

submitted before the High Court.  Thereafter, when the writ  

petition was taken up for hearing, the Amicus Curiae for the  

petitioners (retired Judges) suggested a change to be made  

in Rule 2(a) of the draft Rules.  Rule 2(a) reads as under :

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“2. Medical facilities for retired High  Court  Judges  and  family  members  dependent on them—

(a) Any person who was appointed and  served as a High Court Judge for High  Court  of  Judicature  at  Bombay  and  settled  in  the  State  of  Maharashtra  and  his  family  members  dependent  upon him shall  be entitled whenever  the  Central  Government  Health  Scheme  (CGHS)  is  not  available,  to  receive the reimbursement of medical  expenses  incurred  in  any  hospital  recognized by the  State  Government  to render whole time medical services  as such person shall be entitled.”

7. Amendment suggested to the above Rule was that the  

words ‘shall  be entitled whenever the Central  Government  

Health Scheme (CGHS) is not available’ be substituted by the  

words ‘shall  be entitled whenever the Central  Government  

Health  Scheme  (CGHS)  is  not  availed  of’.   Initially  the  

suggestion was opposed on behalf of the State.  The Principal  

Secretary and RLA, Law and Judicial Department was present  

in Court, however, the Secretary, Finance Department was  

not.  The  matter  was  then  deliberated  before  the  Court.  

Thereafter, the suggestion made was acceded to and it was  

said  that  they  would  take  concurrence  of  the  Finance

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Department  on  the  suggested  change.   The  Court,  thus,  

directed the change in the draft Rules, as suggested.  The  

High  Court  vide  its  judgment  dated  15th January,  2007  

recorded that the CGHS was available only in three cities of  

the State of Maharashtra,  i.e.,  Bombay, Nagpur and Pune.  

The  Court,  while  noticing  the  agreed  amendment  to  Rule  

2(a), recorded its conclusion and relief as under :

“The  learned  Amicus  Curiae  has  gone  through the Rules.  It  is submitted that  these Rules  will  substantially  cover  the  grievances as raised by the petitioners.  Since the power conferred on the State  Government  is  pursuant  to  Section  23D(2)  it  will  be  open  to  the  State  Government  to  either  notify  the  said  Rules in the forum which they have now  been presented or it is open to the State  Government  to  amend  the  G.R.  which  provides  for  medical  benefits  to  sitting  judges and extend the same benefit also  to the retired judge, who are covered by  the draft rules as submitted and which is  substantially the same.  It is made clear  that these Rules will apply to the Judges  who  were  appointed  as  Judges  of  this  Hon’ble Court and have since retired and  are settled in the State of Maharashtra  and Goa.”

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8. While making the Rule absolute, the High Court directed  

the State to notify the Rules or to amend the Government  

resolution in light thereof.  After the pronouncement of the  

above judgment and lapse of a considerable period of time,  

on  8th October,  2007  the  State  Government  filed  an  

application stating  that  the  counsel  and the  officer  giving  

consent for change, by substitution of the words ‘availed of’  

in place of ‘available’, did not realise the repercussions of the  

amendment  and had not obtained the concurrence of the  

Finance Department.  Therefore, it was contended that the  

application should be allowed, the change directed by the  

Court  in  the  draft  Rules  be  deleted  and  the  Rules  in  the  

original form be permitted to be notified.  This application  

was dismissed by a detailed order of the High Court dated  

22nd July, 2008.  The High Court repeatedly noticed that the  

CGHS was not available and keeping in view the facts and  

circumstances  of  the  case,  recorded  that  there  was  no  

occasion for exercising the review jurisdiction, as the order  

did  not  suffer  from any  apparent  error.   The  matter  was  

adjourned on different  dates  for  the State  Government  to

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give  response  to  the  contentions  raised  by  the  Amicus  

Curiae.   It  was also noticed in  this  order  that  some State  

Governments,  including those of U.P. and Andhra Pradesh,  

had  extended  the  facilities  of  medical  treatment  to  the  

retired Judges of their respective High Courts.  The review  

application was thus dismissed as being without any merit.  

Thereupon, the State was directed to comply with the orders  

of the High Court within two months.

9. Aggrieved from the orders dated 15th January, 2007 and  

22nd April, 2008, the State of Maharashtra has preferred the  

present  appeal  by way of special  leave before this  Court.  

The matter was finally heard at the ‘After Notice’ stage.

10. Before  I  delve  into  the  issues  arising  in  the  present  

appeal, it will be appropriate for the court to examine what  

kind of a  right  ‘medical  facilities  to  the judges and/or  the  

former Judges of the High Court’ is.   The Judges of the High  

Courts of the respective States are appointed under Article  

217 of the Constitution of India (for short “the Constitution”).  

Such Judges are appointed by the President by warrant under

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his hand and seal after consultation with the Chief Justice of  

India and the Governor of the State and they hold office till  

the age of 62 years subject to the provisions contained in  

Article 217 of the Constitution.   In terms of Article 221 of the  

Constitution,  the  Judges  of  each  High  Court  shall  be  paid  

such salaries as may be determined by the Parliament by law  

and every Judge shall be entitled to such allowances and to  

such rights in respect of leave of absence and pension as the  

case may be and as determined from time to time under the  

law  by  the  Parliament.  Proviso  to  Article  221  of  the  

Constitution categorically states that neither the allowances  

of a Judge nor his rights in respect of leave of absence shall  

be varied to his disadvantage after his appointment.

11. Article  229(3)  concerns  itself  with  administrative  

expenses,  including  salaries,  allowances  and  pensions  

payable to or in respect of the officers and servants of the  

court, which shall be charged upon the Consolidated Fund of  

the State and any fees or other monies taken by the court  

shall form part of that fund.   These are some constitutional  

provisions which indicate the constitutional protections in the

Page 23

form of legal rights that are available to the judges of the  

High Court.  The Indian Parliament enacted The High Court  

Judges (Salaries and Conditions of Service) Act, 1954.   This  

Act provided the conditions of service of sitting judges and  

even that of acting judges who had been appointed in terms  

of clause (2) of Article 224 of the Constitution.   It dealt with  

the  leave  and/or  allied  subjects  thereto  such  as  salaries,  

pension,  family  pension,  provident  fund  and  other  

miscellaneous  items.   The  miscellaneous  items  included  

travelling allowance, rent free house and medical facilities.  

It made a specific provision with regard to medical facilities  

available to the former judges of the High Court.  Section  

23D dealt with this aspect, while Section 23A dealt with the  

facilities for medical treatment of the sitting judges.   These  

provisions read as under:-

“23A. (1). Every Judge and the members  of  his  family  shall  be  entitled  to  such  facilities  for  medical  treatment  and for  accommodation in hospitals as may from  time to time, be prescribed.  

(2) The conditions of service of a Judge  for which no express provision has been  made in this Act shall be such as may be

Page 24

determined  by  rules  made  under  this  Act.

(3) This section shall be deemed to have  come  into  force  on  the  26th  January,  1950,  and  any  rule  made  under  this  section  may  be  made  so  as  to  be  retrospective  to  any  date  not  earlier  than the commencement of this section.

xxxxx  xxxx   xxxxx

23D(1)Every  retired  Judge  shall,  with  effect from the date on which the High  Court  Judges  (Conditions  of  Service)  Amendment  Act,  1976,  receives  the  assent  of  the  President  be  entitled  for  himself  and  his  family,  to  the  same  facilities as respects medical treatment  and on the same conditions as a retired  officer  of  the  Central  Civil  Services,  Class-I and his family, are entitled under  any  rules  and  orders  of  the  Central  Government for the time being in force.  Plot No 37/1, Site IV, (2)  Notwithstanding  anything  in  sub- section (1) but subject to such conditions  and  restrictions  as  the  Central  Government may impose a retired Judge  of the High Court for a State may avail,  for himself and his family, any facilities  for  medical  treatment  which  the  Government of that State may extend to  him.”

12. Section 23D of the Act deals with the medical benefits  

to which the former Judges of the High Court and their family

Page 25

members  would be entitled to.   This provision states  that  

they would be entitled to similar medical benefits as may be  

prescribed through appropriate rules by the State and to the  

retired  Class  I  Civil  Services  officers.    Sub-section  (2)  of  

Section 23D, in fact, is an exception to Section 23D(1) of the  

Act.   The non-obstante clause of sub-section (2) makes it  

clear  that  the  legislature  intended to provide the  medical  

benefits to the former Judges in terms of the law framed by  

the State but  with restrictions as may be imposed by the  

Central  Government.  It  provides  that  notwithstanding  

anything  contained  in  sub-Section  (1),  but  subject  to  

conditions and restrictions as the Central Government may  

impose, a retired judge of the High Court for the State may  

avail  for  himself  and  his  family,  any  facility  for  medical  

treatment which the Government of that State may extend  

to him.    It cannot be disputed and, in fact, has been noticed  

in the judgment under appeal before this Court that different  

States have different rules to provide medical facilities to the  

former judges of their respective High Courts.    Article 221  

of  the  Constitution  read  with  the  provisions  of  the  Act  is

Page 26

indicative  of  the  fact  that  the  framers  of  the  Constitution  

envisaged parity of such facilities in the States.  Variation in  

grant of medical benefits from one High Court to another and  

one  State  to  another,  besides  adding  inequality  also  

enhances the possibility of a service condition being applied  

to a former Judge of a High Court adversely.  For instance, a  

Judge of Court ‘A’, upon his retirement, would be entitled to  

the  medical  benefits  provided  by  the  State  to  the  former  

Judges of High Court ‘A’.  But, if such a Judge is transferred to  

High Court ‘B’, he would be entitled to the medical benefits  

as allowed by the State to the former Judges of High Court  

‘B’.   There may be disparity between the medical benefits of  

High  Court  ‘A’  and  ‘B’,  like  the  High  Court  ‘A’  may  be  

extending the same benefits as that of a sitting Judge while  

the High Court ‘B’ may be giving the said benefit to a limited  

extent of the CGHS or any other scheme formulated by the  

concerned State.   This would result  in  variation in  service  

conditions to the disadvantage of the Judge concerned, which  

is not permissible in law.

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13. This variation is to the extent that some States/Courts  

provide for complete reimbursement while others do not.  In  

some  States  there  are  rules  permitting  partial  

reimbursement, while in some others even the rules have not  

been framed to provide for adequate medical facilities.  The  

non-availability  of  CGHS  is  another  major  concern  and  

wherever  the CGHS is  available,  availability  of its  benefits  

and impediments in its smooth application are obvious from  

the very ineffective implementation of the Scheme.    The  

CGHS,  firstly,  is  not  even available  in  all  the  major  cities,  

much less in and around the rural areas and secondly, the  

procedure specified under the scheme is quite complex and  

impracticable.   The Scheme contemplates prior permission  

for  referral  hospitals.   In  normal  course  of  sickness,  it  

requires the Head of the concerned specialty in the hospital  

to  grant  such  permission,  subject  to  furnishing  of  the  

requisite documents, which itself may frustrate the purpose  

of reference to an outside hospital. In emergencies, one has  

to  comply  with  the  entire  procedure  of  ex-post  facto  

approval, which appears to be in order.

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14. The  eligibility  criteria  and  the  method  in  which  the  

CGHS can be availed of on paper appear to be sound, but  

when it  comes to practice, things are quite unsatisfactory.  

Receiving a medicine, availability of drugs, the rush in the  

hospitals, payment of bills under the CGHS are some of the  

practical problems that are faced by everyone, of which the  

Court can even take a judicial notice.  Attempts under the  

Scheme have been made by introducing  different  aspects  

like medical audit of hospital bills, holding of claim  adalats,  

establishment of local advisory committees, decentralization  

and delegation of  powers etc.,  but  they ultimately  do not  

serve the purpose of effective and readily available medical  

facilities to the concerned persons.   

15. The Court cannot ignore the harsh reality that the rates  

stipulated  under  the  CGHS and its  approved hospitals  are  

much  lower  than  the  prevalent  rates  for  providing  such  

treatments  in  other  hospitals.   Thus, the State  employees  

and even the former Judges of the Courts have to provide for  

the difference in rates from their own pockets, if they take  

treatment  from  other  private  hospitals.   Of  course,  an

Page 29

attempt has been made by the Central  Government while  

introducing  a  specific  clause,  being  clause  15  in  the  

conditions of tender, relating to validity of CGHS rates which  

requires  that  for  the  stipulated  period,  the  empanelled  

institutions shall not charge more than CGHS rates.  But the  

stated difficulty will still prevail where CGHS is not in force  

and/or  there  are  no  empanelled  hospitals.   In  such  a  

situation, the basic right sought to be protected under the  

rules would stand violated.

16.  The Court  is  certainly  not  oblivious to the  problems  

faced by the Central Government in this behalf, but that by  

itself  cannot  be  reason  enough  to  overlook  the  practical  

problems faced by the people and particularly, the former  

Judges  of  the  High  Courts.    One  aspect  that  deserves  

attention is that in the year 1994, the policy in relation to  

transfer of Judges at the High Court level was introduced and  

has been, thereafter, applied quite frequently.   A Judge may  

be appointed to one Court, transferred to another and still  

another, from where he retires.  It results in dual problems to  

the former Judge; firstly, in relation to availability of medical

Page 30

facilities and secondly, with regard to reimbursement of the  

medical bills.   The nature of the right to medical facility is  

‘statutory’.  It, being a condition of service, cannot be altered  

or changed to the disadvantage of the former Judges.  Such  

is the requirement of law.

17. In normal discharge of his duties, a Judge has to decide  

a case in favour and against the Government as well.  While  

performing his duties in accordance with law, the courts do  

pass some orders of severe or serious consequences, against  

the  State  Government  or  an  officer  in  its  hierarchy.   The  

Courts also deal with penal proceedings under the Contempt  

of  Courts  Act  at  the  level  of  the  higher  judiciary.   In  this  

process, the courts are likely to pass orders which may not  

be to the liking of the executive hierarchy of the State.  In  

such circumstances, the possibility of bias against the Judges  

in the minds of the Executive cannot be entirely ruled out.  

This may have the impact of, if nothing else, lowering the  

degree of impartiality and independence of judiciary.

Relevance of Independence of Judiciary

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18. Another  important  facet  of  this  statutory  right  is  

relatable to the independence of judiciary.  I  may refer to  

some judgments  of  this  Court,  which  have  dealt  with  the  

independence of judiciary with reference to the Constitution  

of India.  Referring to the functions of the judiciary, this Court  

in the case of S.P. Gupta v.  Union of India [(1981) Supp. SCC  

87], held:  

“…what the true function of the judiciary  should be in a country like India which is  marching along the road to social justice  with  the  banner  of  democracy  and  the  rule  of  law,  for  the  principle  of  independence  of  the  judiciary  is  not  an  abstract conception but it is a living faith  which must derive its inspiration from the  constitutional charter and its nourishment  and  sustenance  from  the  constitutional  values.  It is necessary for every Judge to  remember constantly and continually that  our  Constitution  is  not  a  non-aligned  national charter.”      Plot No 37/1, Site IV,

The Court further held:  

"the  principle  of  independence  of  judiciary  is  the  basic  feature  of  the  Constitution.  It cannot remain content to  act merely as an umpire but it must be  functionally involved in the goal of socio- economic justice.  In this judgment, the

Page 32

court  also  referred  to  the  observations  recorded by Justice V. Krishna Iyer in the  case of  Union of India  v.  Sankalchand  Himatlal  Sheth   (1977)  4  SCC  193:  “Independence  of  the  Judiciary  is  not  genuflexion; nor is it opposition to every  proposition of Government.  It  is neither  Judiciary  made  to  Opposition  measure  nor Government's pleasure.”   

19. Besides referring to these remarks, the court with great  

emphasis  noticed  the  views  expressed  by  Dr.  Rajendra  

Prasad  that  the  Constitution  undoubtedly  made  clear  

provisions for an independent judiciary and observed:

“We have  provided  in  the  Constitution  for  a  judiciary  which  will  be  independent.  It  is  difficult to suggest anything more to make the  Supreme  Court  and  the  High  Courts  independent of the influence of the executive.  There is an attempt made in the Constitution  to make even the lower judiciary independent  of any outside or extraneous influence. One of  our  articles  makes  it  easy  for  the  State  Governments  to  introduce  separation  of  executive  from judicial  functions  and  placing  the magistracy which deals with criminal cases  on  similar  footing  as  civil  courts.  I  can  only  express the hope that this long overdue reform  will soon be introduced in the States.”

Page 33

20. In  Sankalchand Himatlal  Sheth (supra), the Court also  

referred to the view of Pt. Jawahar Lal Nehru who said that it  

was important that the High Court Judges should not only be  

first- rate but should be of the highest integrity, people, who  

can stand up against the executive Government and whoever  

come  in  their  way.   According  to  Dr.  Ambedkar,  

independence  of  judiciary  was  of  the  greatest  importance  

and  that  there  could  be  no difference  of  opinion that  the  

judiciary had to be independent of the executive.   

21. In this very judgment, the Court, while referring to the  

form of oath prescribed in clause VIII, Third Schedule of the  

Constitution, for a Judge or a Chief Justice of the High Court  

also noticed that it requires him to affirm that he will perform  

the duties of his office “without fear or favour, affection or ill  

will”.   The  words  “without  fear  or  favour”  have  some  

significance.  Relevancy of such expressions is traceable to  

various constitutional provisions. In terms of Article 202(3)(d),  

the expenditure in respect of the salaries and allowances of  

High Court  Judges is charged on the Consolidated Fund of  

each State and Article 112(3)(d)(iii) enunciates that pensions

Page 34

payable  to  the  High  Court  Judges  are  charged  on  the  

Consolidated Fund of India.    By virtue of Article 113(1) the  

pensions are not subject to the vote of the Parliament.  The  

court also noticed: “Now the independence of the judiciary is  

a  fighting  faith  of  our  Constitution.   Fearless  justice  is  a  

cardinal creed of our founding document.  It is indeed a part  

of our ancient tradition which has produced great Judges in  

the past. In England too, from where we have inherited our  

present system of administration of justice in its broad and  

essential features, judicial independence is prized as a basic  

value  and  so  natural  and  inevitable  it  has  come  to  be  

regarded  and  so  ingrained  it  has  become  in  the  life  and  

thought of the people that it is now almost taken for granted  

and it  would be regarded an act of insanity for anyone to  

think otherwise.”

22. Besides this, the court also noticed that the framers of  

the  Constitution  were  aware  of  this  constitutional  

development  in  England  and  were  conscious  of  our  great  

tradition of judicial independence and impartiality and they  

realized  that  the  need  for  securing  the  independence  of

Page 35

judiciary was even greater under our Constitution than it was  

in England.

23. At this stage, reference to the judgment of this court in  

the case of Union of India v.  R. Gandhi, President Madras Bar   

Association [(2010)  11  SCC  1],  with  reference  to  

independence  of  judiciary  would  be  proper  and,  in  fact,  

inevitable.  A five-Judge Bench of this Court not only observed  

but formatively stated:

“…impartiality,  independence,  fairness  and  reasonableness  in  decision  making  are  the  hallmarks  of  judiciary.   If  “Impartiality” is the soul of the judiciary,  “Independence”  is  the  lifeblood  of  the  judiciary.   Without  independence,  impartiality cannot thrive.  Independence  is not the freedom for Judges to do what  they  like.   It  is  the  independence  of  judicial thought.  It is the freedom from  interference  and  pressures  which  provides the judicial  atmosphere  where  he can work with absolute commitment  to the cause of justice and constitutional  values.”  

(emphasis supplied)

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24. In a recent judgment of this Court in the case of  Brij  

Mohan Lal  v.  Union of India [(2012) 6 SCC 502], the Court  

held as under:

“The  independence  of  the  Indian  judiciary  is  one  of  the  most  significant  features of the Constitution. Any policy or  decision of the Government which would  undermine or destroy the independence  of  the  judiciary  would  not  only  be  opposed to public policy but would also  impinge upon the basic structure of the  Constitution.  It  has  to  be  clearly  understood that the State policies should  neither defeat nor cause impediment in  discharge  of  judicial  functions.  To  preserve  the  doctrine  of  separation  of  powers,  it  is  necessary  that  the  provisions falling in the domain of judicial  field are discharged by the judiciary and  that too, effectively.”

25. Thus,  various  Benches  of  different  strength  (Seven  

Judge Bench, Five Judge Bench and Two Judge Bench) of this  

Court have consistently held that independence of judiciary  

is a part of the basic structure of the Constitution and cannot  

be permitted to be adversely impacted by policy-making or  

even  by  legislative  power.   The  constitutional  ethos  of

Page 37

independent judiciary cannot be permitted to be diluted by  

acts  of  implied  intervention  or  undue  interference  by  the  

executive in the impartial administration of justice, directly  

or  indirectly.   This  Court  in  the  case  of  Supreme  Court  

Advocates-on-Record Association  v.  Union of India [(1993) 4  

SCC 441], in unambiguous terms stated: “Independence of  

judiciary has always been recognised as a part of the basic  

structure of the Constitution.”  It is a known fact that a large  

part of the litigation in courts is generated from people being  

aggrieved against the governance, action and inaction of the  

Government  including  the  executive  and/or  its  

instrumentalities.  Thus, the courts must be kept free from  

any influence that the executive may be able to exercise by  

its  actions,  purely  executive  or  even  by  its  power  of  

subordinate  legislation.   Where  this  court  refers  to  

independence,  fairness  and  reasonableness  in  decision-

making  as  the  hallmarks  of  judiciary,  there  it  also  states  

impartiality as one of its essentials.  Though, what is most  

important is the independence of judiciary, its freedom from  

interference and pressure from other  organs of the State.

Page 38

The Courts and Judges, thus, must be provid Plot No 37/1,  

Site IV,ed complete freedom to act, not to do what they like  

but  to  do  what  they  are  expected  to  do,  legally  and  

constitutionally  and  what  the  public  at  large  expects  of  

administration  of  justice.   If  the  State  is  able  to  exercise  

pressure  on  the  Judges  of  the  High  Court  by  providing  

arbitrary  or  unreasonable  conditions  of  service  or  altering  

them in an arbitrary manner, it would certainly be an act of  

impinging upon the independence of judiciary.   Of course,  

what is put forward as part of the basic structure must be  

justified by reference to the provisions of the Constitution.  

When one looks into the scheme of our Constitution and the  

doctrine of separation of powers,  there are many Articles,  

some of which I have already referred to, which clearly show  

that  independence of the judiciary was of utmost concern  

with  the  framers  of  the  Constitution.   Such  intent  of  the  

framers  is  not  only  ingrained  into  the  ethos  of  our  

Constitution but is also explicitly provided for, even in the  

Directive  Principles  of  the  Constitution.  Reference  in  this  

regard can usefully be made to Article 50 of the Constitution,

Page 39

which requires the State to separate the judiciary from the  

executive in public services of the State.  This Article, with  

the  passage  of  time,  has  turned  into  a  constitutional  

mandate rather than a mere constitutional directive.   

26. For the judiciary to be impartial and independent and to  

serve  the  constitutional  goals,  the  Judges  must  act  fairly,  

reasonably,  free  of  fear  and  favour.   The  term  ‘fear’  as  

explained  in  various  dictionaries,  means  ‘an  unpleasant  

emotion caused by threat of danger, pain or harm; a feeling  

of anxiety regarding the likelihood of something unwelcome  

happening’.  (Concise  Oxford  English  Dictionary,  Eleventh  

Edition Revised)  On the other hand, ‘favour’ means ‘approval  

or liking; unfair preferential treatment, inclination, prejudice,  

predilection  (Concise  Oxford  English  Dictionary,  Eleventh  

Edition Revised  and  Black’s Law Dictionary, Eighth Edition).  

The necessity of acting free of fear or favour is to maintain  

impartiality and independence of the judicial decision-making  

process.  A  five-Judge Bench of this court, very affirmatively  

and  to  put  the  matters  beyond  ambiguity,  in  the  case  of

Page 40

State of Bihar  v.  Bal Mukund Sah [(2000) 4 SCC 640], held  

as under:  

“…We  may  also  usefully  refer  to  the  latest decision of the Constitution Bench  of this Court in  Registrar (Admn.), High  Court of Orissa v.  Sisir Kanta Satapathy  wherein  K.  Venkataswami,  J.,  speaking  for  the  Constitution  Bench,  made  the  following  pertinent  observations  in  the  very  first  two  paras  regarding  Articles  233 to 235 of the Constitution of India:  

“An independent Judiciary is one of  the  basic  features  of  the  Constitution of the Republic. Indian  Constitution has zealously guarded  independence  of  Judiciary.  Independence  of  Judiciary  is  doubtless  a  basic  structure  of  the  Constitution but the said concept of  independence  has  to  be  confined  within  the  four  corners  of  the  Constitution and cannot go beyond  the Constitution.”

XXX     XXX XXX

[T]he  mere  fact  that  Article  309  gives  power  to  the  Executive  and  the  Legislature  to  prescribe  the  service  conditions  of  the  Judiciary,  does  not  mean that the Judiciary should have no

Page 41

say in the matter. It would be against the  spirit of the Constitution to deny any role  to  the  Judiciary  in  that  behalf,  for  theoretically it  would not be impossible  for  the  Executive  or  the  Legislature  to  turn and twist the tail of the Judiciary by  using  the  said  power.  Such  a  consequence would be against one of the  seminal  mandates  of  the  Constitution,  namely, to maintain the independence of  the Judiciary.”

27. When  I  discuss  the  conditions  of  service  of  judiciary,  

they  have  to  be  reasonable  and  free  of  arbitrariness.  

Arbitrariness  in  the  power  of  the  State  to  make  unfair  

conditions of service for the sitting or the former Judges of  

the  High  Court  would  tantamount  to  putting  a  kind  of  

pressure  on  the  judiciary,  requiring  them  to  run  to  the  

Government for every small sickness or for reimbursement of  

expenditure incurred on some major ailment.   The powers  

vested in the State, as aforenoticed, are not to cause fear or  

favour or any pressure in the mind of the judiciary, lest the  

sitting  Judges,  after  retirement,  be  dependant  upon  the  

kindness of the executive.  This element of arbitrariness or  

mercy must be eliminated so as to give judiciary its deserved

Page 42

independence and freedom to work effectively in the public  

interest and for attainment of the constitutional goals.  Any  

unreasonable restriction would amount to interference with  

the  doctrine  of  impartiality  and  fairness  applicable  to  the  

judiciary in all events.

28. Having  discussed,  in  some  elaboration,  the  

constitutional colour of this statutory right, I must refer to the  

facts of the present case.  I do not see any reason for the  

State  of  Maharashtra  to  have  withdrawn  its  consent  for  

substitution of the words ‘availed of’ in place of ‘available’.  It  

had ample time at its disposal, as various matters came up  

before the Court on a number of hearings, particularly prior  

to such substitution.  It  is expected of the State to act in  

accordance with the accepted canons of governance and not  

to  render  the  judicial  proceedings  ineffective  and  

inconclusive.  The stand of the Government ought to have  

been  in  favour  of  a  condition  which  would  bring  judicial  

independence,  impartiality  and  fearlessness  to  the  fore  

rather  than  its  restriction,  which  apparently  was  of  

unreasonable nature.  Is it the fault of the citizens or that of

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the  Government  servants  that  the  CGHS  Scheme  is  not  

available in a large number of cities in India and wherever it  

is available, it is proving ineffective, as people fail to receive  

their  reimbursement  claims  for  months  together,  despite  

instructions  issued  by  the  concerned  Ministry?   It  will  be  

unfortunate if a sitting Judge has to be continuously under  

the  fear  as  to  what  his  medical  facilities  will  be  after  

retirement.   His  service  conditions  should  be  definite  and  

favourable  to  building  the  public  confidence  in  the  

administration  of  justice  rather  than  bringing  

unreasonableness and arbitrariness in the State action.  The  

Ministry of Health and Family Welfare has issued a circular  

dated 14th November, 2011 attempting to streamline various  

aspects of implementation of the CGHS Scheme which itself  

shows that the scheme suffers from various infirmities and  

shortcomings and is not proving to be effective.  The impact  

of the circular would have to be seen over a period, to realize  

its benefits, if any.  Even in the circular issued by the same  

Ministry dated 27th April, 2011, which opens with the words  

“keeping in view the difficulties being faced by the pensioner

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CGHS  beneficiaries  residing  in  non-CGHS  covered  areas”  

certain clarifications were issued.  The basic  problem that  

arises  is  with  regard  to  the  emergency  cases,  specialized  

treatments and most concernedly the reimbursement of the  

bills  and the process of verification of such matters.   The  

procedure is so complex and results in such inordinate delays  

that it becomes difficult for the beneficiaries to continue their  

treatment faithfully and as advised.

29. Lack of instructions from the Finance Department was  

pleaded  to  be  the  sole  ground  for  seeking  review of  the  

judgment of the High Court.  Inter departmental dealing is a  

matter  of  internal  management  of  the  Government.   The  

Government is represented as a unit before the Courts. How  

they manage their internal affairs is for them to decide.  The  

High Court rightly held that it was not an error apparent on  

the face of the record, justifying the review or satisfying the  

ingredients  of  Order  XLVII  Rule  1  of  the  Code  of  Civil  

Procedure,  1908.   Substitution  of  the  word  ‘available’  by  

‘availed  of’  does  not  bring  any  prejudice  in  law.   On  the  

contrary,  it  would be  in  conformity  with  the  constitutional

Page 45

requirements of equal treatment of all Judges.  It is ultimately  

a matter relating to medical treatment, which nobody claims  

out of choice but it always emerges from necessity.  Would it  

not be fair and reasonable on behalf of the State to take a  

stand which is in consonance with judicial independence and  

impartiality rather than subjecting a Judge to the pressure of  

worrying about the availability of medical facilities during the  

retirement  era?   It  will  be  in  line  with  the  constitutional  

mandate  of  separation  of  powers  and  independence  of  

judiciary  that  the  medical  facilities  are  permitted  to  be  

availed  by  the  Judges/former  Judges  on  the  concept  of  

‘availed  of’  instead  of  where  there  are  ‘available’  with  

reference to the CGHS.  Furthermore, the bills of the Judges  

should  be  submitted  with  the  Registrar  General  of  the  

concerned High Court and should be dealt with and paid in  

accordance  with  the  rules  of  the  High  Court.   The  State  

Governments should provide a due head of expenditure for  

this purpose in the budget of their respective High Courts.  

This will help in expeditious payments and also ensure that  

the Judges would not have to run after the members of the

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executive for clearance of their dues and the availability of  

medical  facilities  for  them  and  their  dependent  family  

members  would  not  depend  upon  the  whims  of  the  

concerned authority.

30. Availability of uniform medical facilities for the former  

Judges in the entire country can also be substantially justified  

on another ground that there exists transfer policy of High  

Court Judges.  This policy has been in force since 1994 and,  

therefore, this requires that the entitlement of former Judges  

and their dependent family members should not vary from  

place  to  place.  Uniformity  would  remove  another  

apprehension in the minds of the Judges as to the Court from  

which they retire.  Presently, it is clear even from the various  

documents submitted and placed on record by the learned  

Additional Solicitor General that there are different benefits  

in  different  States  and,  thus,  the  medical  benefits  at  the  

Centre as well as between the States are comparatively and  

considerably  different.  This  disparity  leads  to  a  patent  

discrimination which should not be permitted.  It will be in  

the  interest  of  all  concerned,  including  the  State

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Governments,  that  complete  uniformity  is  maintained  in  

relation to availability of medical facilities in terms of Section  

23D of the Act and procedure of reimbursement of medical  

bills of the former Judges of the High Courts.  The Former  

Judges of the High Courts should be placed at parity with the  

sitting Judges of the High Courts.  Thus, it will be appropriate  

for  the  competent  authority  to  frame/amend  the  rules  in  

accordance  with  this  judgment  and  the  constitutional  

mandate.   

31. Keeping in  view the doctrine of separation of powers  

and independence of judiciary, which are the structural ethos  

of our Constitution, it is expected that the legislative power  

and  more  particularly,  the  subordinate  legislative  power,  

ought  not  to  be  exercised  so  as  to  obtrude  these  basic  

fundamental  principles.   The  exercise  of  subordinate  

legislative  power,  which  by  necessary  implication,  

entrenches upon the independence of judiciary, would have  

to  be  decided  on  the  touchstone  of  it  being  violative  or  

otherwise, of the basic structure of the Constitution.  

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32. In  order  to  ensure  the  absolute  independence  of  

judiciary, in the interest of administration of justice and for  

the Judges to act free of any apprehensive attitude and to  

provide complete certainty to the service conditions of the  

former  Judges  of  the  High  Courts,  I  dispose  of  the  above  

appeals and pass the following order-cum-directions:   

a) I do not find any merit in the present appeals.   

b) Rule 2(a) of the draft rules shall remain in the form as  

directed by the High Court.  The word ‘available’ shall  

stand substituted by the words ‘availed of’. The State of  

Maharashtra  is  hereby  directed  to  notify  these  rules  

forthwith.

c) Henceforth, there shall  be complete uniformity in the  

‘grant  of  medical  benefits’  to  the  former  Judges  of  

various High Courts.

d) It  may  not  only  be  desirable  but  necessary  for  the  

Centre and the State Governments to amend and alter  

the existing rules. If no rules are in force, to frame the  

rules on such uniform lines.

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e) In relation to the medical facilities, the former Judges of  

the  High  Courts  would  be  placed  at  parity  with  the  

facilities  available  to  the  sitting  Judges  and  their  

dependent family members.  Providing such benefit and  

bringing uniformity in the rules shall be in the interest of  

the  State  administration  as  well  as  administration  of  

justice.

f) All the medical bills of the former Judges of various High  

Courts shall  be submitted to the Registrar General  of  

the  concerned  High  Court,  who  shall,  subject  to  

approval  of  the  Chief  Justice  of  that  Court  and  in  

accordance with the rules in force, pay such bills (upon  

due scrutiny) to the former Judges.

g) The Union Government and the State Governments are  

directed to provide such ‘head of expenditure’,  being  

part  of the High Court  budget of the respective High  

Courts for reimbursement of medical bills of the former  

Judges.  In other words, the payment would be directly  

made by the High Court to the former Judges and it, in  

turn, would be reimbursed by the State Government.

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h) All  the  former  Judges  of  the  High  Courts  would  be  

entitled to receive medical facilities from the hospitals  

so  empanelled  by  the  Central  or  the  State  

Governments, as the case may be.

i) Till  appropriate  rules  are  framed  by  the  appropriate  

authority,  these  directions  shall  remain  in  force  and  

shall be abided by the executive  

33. The  appeals  are  disposed  of  in  the  above  terms.  

However, there shall be no orders as to costs.

...….…………................J.  (Swatanter Kumar)

New Delhi; December 13, 2012

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.  9020-9021  OF 2012  (Arising out of SLP (C) Nos. 15739-15740 of 2008)

The Secretary, Ministry of Health & Family

Welfare, Government of Maharashtra               … Appellant

Versus

S.C. Malte & Ors.                                         … Respondents

O R D E R

Since there has been a difference of opinion between us  

in  these  Civil  Appeals,  the  Registry  will  place  these  Civil  

Appeals before My Lord the Chief Justice of India to constitute  

a larger Bench to hear and decide these Civil Appeals.    

.……………………….J.                                                            (A. K. Patnaik)

.……………………….J.                                                            (Swatanter Kumar)

New Delhi, December 13, 2012.