Gobind Thukral vs State Of Haryana & Others

DATE OF DECISION: April 25, 2011

Gobind Thukral

.....Petitioner

VERSUS

State of Haryana & others

....Respondents

CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH

1. Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest?

PRESENT: Mr.J.S.Toor, Advocate, for the petitioner.

Mr.Sunil Nehra, Sr.DAG, Haryana, for the State.

Mr.H.N.Mehtani, Advocate, for respondent No.3.

****

RANJIT SINGH, J.

A retired member of Haryana Public Service Commission

(for short "HPSC") has approached this court to seek reimbursement

of his medical claim to which he claims to be entitled to under

Haryana Public Service Commission (Conditions of Service)

Regulations, 1972 (hereinafter called as the "1972 Regulations"). Civil Writ Petition No.20922 of 2008 :2:

The claim of the petitioner for medical reimbursement has been

declined on the ground that non-official members of the commission

are not entitled to medical attendance.

The petitioner concededly was appointed member of the

HPSC from where he retired on 3.7.1997. The petitioner was held

entitled to pension which he is drawing. He, thus, claims to be

entitled to all the benefits as Ex-member of the HPSC. The petitioner

had undergone an operation of his right eye at PGI, Chandigarh. For

his admission and treatment, petitioner has incurred expenses of

Rs.13,180/-, the details of which are given in Annexure P-2 annexed

with the petition. On 11.7.2007, petitioner submitted his claim for

reimbursement of this amount and in response he was apprised that

facilities of medical reimbursement are available to the Government

employees. This is as per the advise of Chief Secretary, Government

of Haryana through his letter dated 12.3.2003 to the effect that non-

official members of the commission do not fall in the ambit of

definition of Government Employee. Copy of this letter is annexed

with the petition as Annexure P-3.

Petitioner thereafter wrote a letter to Chief Secretary on

12.7.2007 pointing out that members of the commission need not be

Government employees and the Medical Attendance Rules would be

applicable to members of the commission irrespective of the fact

whether they have previously been Government employees or not.

As per the petitioner, no classification had been made in the rules or

in the constitution in regard to the condition of service of the

members. The petitioner maintained that neither Articles 311 to 323

of the Constitution nor the rules notified make any distinction Civil Writ Petition No.20922 of 2008 :3:

between the members drawn from the public or from the

Government service. Mention is also made to the definition of

members as contained in the Rules notified on 18.8.1972, copy of

which has been appended with the petition as Annexure P-4. The

Chief Secretary, however, responded by reiterating the stand earlier

taken by the commission that non-official members are not entitled to

medical attendance. In his communication, Chief Secretary had

made a distinction that non- official members of the commission are

not Government servants and rather they serve in connection with

the affairs of the State. Petitioner, would describe this distinction to

be funny. Copy of this communication is on record as Annexure P-5.

Before filing the petition, the petitioner filed an application

under Right to Information Act to know if any other retired member of

HPSC has ever been disbursed medical reimbursement under the

rules. The specific query made in this regard by the petitioner was as

under:-

"The rules about medical attendance for the retired

HPSC members. How many representations/bills for

medical attendance were received from the retired

members of HPSC? Who were the former members who

sought payment for their medical treatment from the

Haryana government? How many were paid and how

many were refused payment? What were the grounds for

refusal or payment in each case?"

In response, the petitioner received a reply stating that

there was no provision for grant of medical reimbursement to the

retired members of the HPSC and, thus, it was not possible to supply Civil Writ Petition No.20922 of 2008 :4:

the photocopy. The petitioner thereafter filed a statutory appeal as

complete information had been denied to him and misleading

statement was made. The appellate authority, however, passed an

order on 17.9.2008 noticing the contention of the SPIO that no record

in this regard was available. The petitioner later was able to receive

cogent information that reimbursement of medical claim of two Ex-

HPSC members, who were public men, was allowed. In this regard,

reference is made to the cases of Shri Rati Ram Sharma and Shri

Gopi Chand Bhalla to whom the medical reimbursement had been

allowed on 31.3.1995 under the signatures of Chief Secretary,

Government of Haryana in the name of Governor. The petitioner

thereafter served a legal notice and when no action was taken, he

filed the present petition before this court.

Written statement has been filed on behalf of respondent

Nos.1 and 2. After making reference to Article 316 of the

Constitution, it is stated that nearly half of the members of every

Public Service Commission shall be persons who have held office

under the Government of India or the Government of State.

Reference is then made to Regulation 13 of the Regulations, 1972,

which makes a provision for grant of medical attendance to the

Chairman and members and reads as under:-

"13. For purposes of Medical attendance on them,

Members of the Commission will be government by the

Punjab Services (Medical Attendance ) Rules, 1940, as

adopted by State of Haryana."

As per the respondents, it is clear from the above

provision that this regulation is only for working members of the Civil Writ Petition No.20922 of 2008 :5:

commission and not for retired members. It is further stated that the

Punjab Services (Medical Attendance) Rules, 1940 (for short "1940

Rules") provide medical facilities to working Government employees

and there are separate Government instructions for the pensioners.

These instructions have been annexed with the reply as Annexures

R-1 and R-2 and on this basis, it is stated that the case of the

petitioner would not be covered under Regulation 13 as reproduced

above.

Mr.Toor appearing for the petitioner would first make

reference to Regulations, 1972 to urge that these regulations would

apply to members of the commission holding office at the

commencement of these regulations. As per the counsel, these

regulations apply to all the members, who are appointed thereafter

and in this regard would make reference to the definition of a

members as contained in regulation 2(d) where member is defined to

"a member of the commission and includes the Chairman thereof".

Rule 13 governs the grant of medical attendance and this is further

governed by 1940 Rules. The 1940 Rules have been adopted by

Haryana State and medical reimbursements are being made on the

basis of these rules. The counsel for the petitioner submits that there

is no distinction made in the rules so far as definition of member is

concerned and, thus, the distinction sought to be made to deny the

claim of the petitioner is termed as artificial, arbitrary and illegal.

Rule 13 of the 1940 Rules also apparently is not making

any distinction so far as members drawn from difference sources are

concerned and what all it provides is that the medical attendance to

them will be governed by 1940 Rules. Necessarily, therefore, one Civil Writ Petition No.20922 of 2008 :6:

would have to see the 1940 Rules to determine whether the

petitioner would be entitled to medical reimbursement or not. These

rules had not been placed on record initially. When this case came

up for hearing, it was considered essential to ascertain if the

petitioner was in receipt of any pension and whether he was being

treated as a retired employee or one who had resigned. An additional

affidavit was then filed disclosing that petitioner was getting pension

as per the provisions contained in sub-regulation 9A(1) of the

Regulation, 1972. It is also stated that these regulations were framed

under Article 311 of the Constitution, whereas the Government

servants are covered under the provisions of CSR Volumes 1 & II. It

is accordingly pointed out that conditions of service of the Chairman

and members of the HPSC are regulated under Article 318 of the

Constitution and not under Article 309 of the Constitution as is the

case of the Government employees and, thus, the members of the

Public Service Commission are not covered under the definition of

government employee.

The petitioner thereafter filed a detailed response to this

affidavit reiterating that there is no difference between the members

of the commission appointed through different sources either from

general public or as government employees and once a person was

appointed as a member, he would be entitled to medical attendance

as is permissible to Government servant under 1940 Rules. As per

the petitioner, the word "public servant" wherever used in 1940 Rules

would have to be read as a member and, thus, the petitioner would

reiterate his submission and entitlement. Along with this response,

copy of the Medical Attendance Rules, 1940 was also placed on Civil Writ Petition No.20922 of 2008 :7:

record.

The writ petition was thereafter admitted and was posted

for hearing. During the course of arguments, it transpired that

medical reimbursement was primarily permissible to those who were

allowed pension. The Government counsel was accordingly required

to have instructions whether Government could deny medical

reimbursement to the petitioner, who was in receipt of pension or not.

Subsequently, however, the counsel for the petitioner took time to

place on record some additional documents to show that the

petitioner was an employee of the State of Haryana and, thus, would

be governed by Medical Attendance Rules as applicable to the State

employees. Through Civil Misc.Application No.6128 of 2010, the

petitioner made reference to Article 322 to highlight that expenses of

the Union or the State Public Service Commission including any

salary, allowances and pensions payable to or in respect of the

Members or staff of the Commission, were to be charged on the

consolidated fund of India or the consolidated fund of the State. The

petitioner, thus, highlighted that the pension payable to the petitioner

was charged to the consolidated fund of the State and, thus, Haryana

Public Service Commission had no such funds. It is also pointed out

that the consolidated fund of the State budged is passed by the

legislative assembly and an appropriation bill is also passed by the

State assembly. Reference is made to the budget for the year 2010-

2011 to highlight that funds had been allocated for the State Public

Service Commission from the consolidated funds of the State of

Haryana for the heads, like salaries, wages, dearness allowances,

travel expenses, office expenses, rent, rates and taxes, publication, Civil Writ Petition No.20922 of 2008 :8:

advertising and publicity, secret service expenditure, motor vehicles,

P.O.L., proficiency & special services, Medical reimbursement,

leave travel concession, ex-gratia and establishment expenses.

From this, it is highlighted that pension of the members of the staff of

Public Service Commission is not one of the heads for which the fund

is allocated to Haryana Public Service Commission. From this, it is

pointed out that disbursement of pension and other retiral benefits is

within the jurisdiction of the State of Haryana and not the Haryana

Public Service Commission. A reference is also made to some

communication by the Chief Secretary to the Accountant General for

fixing the pension for disbursement. Relevant portion of the budget

2010-2011 has also been annexed with the application. Plea

accordingly is that the petitioner is a State pensioner and so entitled

to medical reimbursement of his claim.

The State took time to file response to this additional

pleadings. It is pointed out that the State budget is of three types, i.e.

voted budget, charged budget and decretal amount. It is stated that

the voted budget of the State has been provided by the Government

of India under Article 309 and charged budget has been provided for

the Constitutional body working in the State and for Public Service

Commission. This budget has been provided under Article 322 of the

Constitution. It is accordingly stated that the expenses of the State

Public Service Commission are to be paid from the consolidated

funds of the State, i.e. charged budget and not from the voted

budget. It is otherwise conceded that these three budgets are passed

by the legislative assembly. It is also clarified that pension is payable

to the members under Article 318 of the Constitution and so the Civil Writ Petition No.20922 of 2008 :9:

condition of Service Regulations, 1972 has been framed. An attempt

is made to draw distinction between the government employees and

the members of the Public Service Commission on these lines.

The first reason for which the reimbursement of medical

bill has been declined to the petitioner is contained in Annexure P-3.

It is stated therein that facilities of medical reimbursement are

available to Government employees and the non-official members of

the commission do not fall within the ambit of definition of a

Government employee. Chief Secretary further elaborated the same

by disclosing in Annexure P-5 that non-official members of the

HPSC are not Government servants, rather they serve in connection

with the affairs of the State and, therefore, after retirement are not

entitled to medical reimbursement claim. The argument of the

counsel for the petitioner is that this distinction as drawn by the

respondents cannot be made out from the provisions of the

Regulations 1972, where no distinction is drawn between the non-

official and other members of the commission. As per the counsel,

the petitioner shall be entitled to medical reimbursement on account

of his entitlement to pension and he would be entitled to the said

medical reimbursement being a member of the commission. The

State counsel, however, would insist that member being not a

Government pensioner would not be entitled to medical

reimbursement and such reimbursement is permissible only to those

members, who had been a Government servant earlier. Reliance is

made on the instructions issued by the Government to urge that it is

meant for retired Government employees.

Regulation 9A(1) of 1972 Regulations governing the Civil Writ Petition No.20922 of 2008 : 10 :

condition of service of the members of the Public Service

Commission makes a provision for pension payable to the members

who were not members of the Service of the Central or the State

Government. On ceasing to hold the office, they are to be paid

pension for life at a rate that is provided in this paragraph of the

Regulation. Thus, it is undisputed that the petitioner is in receipt of

pension. The provisions of Regulation 13 cannot be read to mean

that there is a distinction drawn for grant of medical attendance to

those who were in the government service prior to their appointment

as members and those who were appointed directly from public. That

is why, the member while serving as such, was entitled to medical

attendance. The State is pressing the provisions of Punjab Service

Medical Attendance Rules in service to interpret Regulations

governing the condition of service of the members of the

Commission. For interpreting the provisions of the Regulations 1972,

Punjab Service Medical Attendance Rules may not be open to be

pressed for aid.

It can be noticed from the copies of certain

communications addressed with the reply of the respondents that the

grant of medical facilities in Haryana is to the pensioners and their

wives/husbands. A perusal of Annexure R-1 would clearly show that

the Government itself has realised the difficulty faced by the retired

Government pensioners, who ceased to be entitled to medical

facilities, which, they were receiving immediately before retirement.

The Haryana Government pensioners drawing pension were

accordingly held entitled to these facilities. Reference has also been

made to various policies where the Government had reviewed the Civil Writ Petition No.20922 of 2008 : 11 :

rules governing the grant of medical reimbursement and the hospital

from where treatment could be taken for reimbursement purposes.

The respondents would explain that but for these instructions, retired

employee would not have been entitled to medical reimbursement.

Pleas appear to be that the petitioner is not a retired Government

employee and hence, not entitled to reimbursement of medical

attendance as these instructions are not applicable to him. If that be

so, then how the respondents would explain the reimbursement of

medical attendance to two members as given in Annexures P-11

and P-12. The distinction sought to be drawn by the respondents

may not appear justified. It could not be disputed before me that the

petitioner was entitled to medical reimbursement while he was

serving as a member of the commission. Why the petitioner would

not be entitled to medical reimbursement once he is a pensioner?. In

my view, the payment of pension be it from the consolidated fund or

any other fund is made by the State and hence it is not possible to

urge that the petitioner is not a pensioner of the Haryana

Government. That distinction to me would appear to be unjust and

inequitable and artificially pressed.

To substantiate his plea, the State counsel has invited my

intention to the case of G.L.Batra Versus State of Haryana and

others, 2010(1) S.C.T. 562, where this court had observed that the

regulation providing for deduction of pension from the total

emoluments payable to the Chairman and members appointed after

retirement from Government service create illegal classification

where this court upheld by observing that apparently both constitute

different classes. The court accordingly observed that there would be Civil Writ Petition No.20922 of 2008 : 12 :

no legal difficulty to adopt different principles of fixation of pay in

respect of two different classes of persons. This distinction was

made on the basis of legislation and it is observed that there is a

presumption in favour of the constitutionality of the same. It is held

that equal protection clause of Article 14 cannot be construed to

mean that the same rules of law should be applied to all irrespective

of difference. It is, thus, held that re-employed pensioner cannot be

permitted full salary attached to the office as it would result into much

more pay than he was getting before retirement. In my view, the ratio

in this case perhaps would have no applicability to the facts of the

present case. In the G.L.Batra's case (supra), a distinction has been

drawn by the legislature itself for fixing the pay of two classes of

members, one who are appointed from public and another who are

so appointed after their retirement from the government service. It is

on the basis of this legislated provision that the allegation of

discrimination and arbitrariness was negated. As already noticed

above, no distinction has been drawn so far as grant of medical

reimbursement is concerned in the condition of service as regulated

by Regulations of 1972. Thus, the consideration which weighed with

the court in G.L.Batra's case (supra) would not strictly apply to the

facts of the present case. This was a case where primarily

Regulation 6 of Regulation 1972 governing the fixation of

remuneration was under consideration.

On the other hand, the counsel for the petitioner had

made reference to number of judgments to plead if no distinction is

made in the members by the regulations, then that casus omissus

cannot be supplied by the court except in case of clear necessity and Civil Writ Petition No.20922 of 2008 : 13 :

when reason for it is found in the four concerns of statute itself.

Casus omissus means a point unprovided for by a statute. A case

not provided for by a statute and therefore would be government by

common law. It is noticed that a `casus omissus' should not be

readily inferred and for that purpose all the parts must be construed

together and every clause of a section should be construed with

reference to the context and other clauses thereof, so that

construction to be put on a particular provision makes a consistent

enactment of the whole statute. (See Commissioner of Income-tax

Central Calcutta Vs. National Taj Traders, AIR 1980 SC 485). It is

further observed that this position would be more so if literal

construction of a particular clause leads to manifestly absurd or

anomalous results which could not have been attended by the

Legislature. The court has noticed two principles of Constitution in

the case. One relating to `casus omissus' and other in regard to

reading of statute as a whole. Observation of Maxwell on

interpretation of Statutes is noticed which is as under:-

"Omissions not to be inferred-"It is a corollary to the

general rule of literal construction that nothing is to be

added to or taken from a statute unless there are

adequate grounds to justify the inference that the

legislature intended something which it omitted to

express. Lord Morsay said: `It is a strong thing to read

into an Act of Parliament words which are not there, and

in the absence of clear necessity it is a wrong thing to do'.

`We are not entitled', said Lord Loreburn L.C., `to read

words into an Act of Parliament unless clear reason for it Civil Writ Petition No.20922 of 2008 : 14 :

is to be found within the four corners of the Act itself'. A

case not provided for in a statute is not to be dealt with

merely because there seems no good reason why it

should have been omitted, and the omission appears in

consequence to have been unintentional."

In regard to the latter principle the following statement of

law appears in Maxwell at page 47:

A statute is to be read as a whole--"It was resolved

in the case of Lincoln College's case (1595) 3 Co Rep

58b, at page 59b that the good expositor of an Act of

Parliament should make construction on all the parts

together, and not of one part only by itself.' Every clause

of a statute is to 'be construed with reference to the

context and other clauses of the Act, so as, as far as

possible, to make a consistent enactment of the whole

statute.' (Per Lord Davey in Canada Sugar Refining

Co.Ltd. v. R. 1898 AC 735(Canada))."

Reference is made to Sultana Begum Versus Prem

Chand Jain, AIR 1997 SC 1006 to urge that while interpreting the

statutes, harmonious construction rule is to be applied. It is observed

that the courts have also to keep in mind that an interpretation which

reduces one of the provisions as a "dead letters" or "useless lumber"

is not harmonious construction. To harmonise is not to destroy any

statutory provision or to render it construction otiose. The following

principles are discernible from the various judgments noticed in this

case:-

"(1) It is the duty of the Courts to avoid a head on clash Civil Writ Petition No.20922 of 2008 : 15 :

between two Sections of the Act and to construe the

provisions which appear to be in conflict with each other

in such a manner as to harmonize them.

(2)The provisions of one Section of a statute cannot be

used to defeat the other provisions unless the court, in

spite of its efforts, finds it impossible to effect

reconciliation between them.

(3) It has to be borne in mind by all the courts all the time

that when there are two conflicting provisions in an Act,

which cannot be reconciled with each other, they

should be so interpreted that, is possible, effect should

be given to both. This is the essence of the rule of

"harmonious construction".

(4) The courts have also to keep in mind that an

interpretation which reduces one of the provisions as a

"dead letter" or "useless lumber" is not harmonious

construction.

(5) To harmonize is not to destroy any statutory provision

or to render it otiose."

In this regard only, reference is made to

Padmasundara Rao (Dead) and others Vs. State of T.N. And

others, AIR 2002 SC 1334 where two principles of construction, one

relating to `casus omissus` and other in regard to reading the statute

as a whole has been held to be well settled. It is further observed that

under the first principle a casus omissus cannot be supplied by the

court except in the case of clear necessarily and when reason for it is

found in the four corners of the statute itself, but at the same time a Civil Writ Petition No.20922 of 2008 : 16 :

casus omissus should not be readily inferred for that purpose all

parts of a statute or section must be construed together and every

clause of the section should be construed with reference to the

context and other clauses thereof, so that construction to be put on a

particular provision makes a consistent enactment of the whole

statute. Reference is also made to V.S.Mallimath Versus Union of

India and another (2001) 4 SCC 31 and M.S.Chawla and others

Versus State of Punjab and another, (2001) 5 SCC 358 where the

expression "Government" used in the National Human Right

Commission Chairperson and Members (Salaries, Allowances and

Other Conditions of Service) Rules 1993 has been construed in a

wider sense. In Bhagat Ram Sharma Versus Union of India and

others, 1998 (Supp) SCC 30, the Hon'ble Supreme Court observed

that newly added Regulation is a remedial measure to remove an

anomaly and hence it must receive a beneficial construction and if it

is capable of two interpretations, the court must prefer that

construction which permits the beneficent purpose behind it. It is

further observed that when language of a statute is free from

ambiguity, no duty is cast upon the court to do anything more to give

effect to the word or words used. Some other judgments have also

been placed before me to urge that discrimination cannot be made in

favour of recruits from one source against the recruits from other

sources in the matter of further promotion as once they are absorbed

in one cadre they formed one class. Roshan Lal Tandon Versus

Union of India and others, 1967 SLR 832 is relied in this regard.

There is no provision made in the Regulations, 1972 to Civil Writ Petition No.20922 of 2008 : 17 :

make a distinction in regard to the definition of members drawn from

different sources and the right of reimbursement of medical

allowances. If the intention of Legislation was to deny this benefit to

those members of the public service commission, who are appointed

from public, then the same was clearly required to be provided for in

the Regulations. As noticed above, a case omitted is to be held an

intentionally omitted. `Casus omissus', thus, cannot be created by

interpretation. The position has to be governed by common law. This

aspect is being read into the Regulation on the basis of provision

made in the 1940 Rules. If it is a case of `casus omissus`, then the

principle as annunciated in regard to interpretation of statute cannot

be over looked. This cannot be readily inferred and all provisions of

the Regulations have to be construed together. Any other

interpretation would lead to a construction which would be less

beneficial. As already noticed, the court must prefer that construction

which permits the beneficent purpose behind the legislation. If the

language of the statute is free from ambiguity and court is called

upon is to give effect to the word or the words used. As observed

above, the provision of one section of a statute cannot be used to

defeat the other provision unless the court finds it impossible to effect

reconciliation between them. If the essence of these provisions is

that medical attendance is allowed to Government pensioner, then

there is much weight in the plea raised by the counsel for the

petitioner that petitioner is getting pension from the State. The

petitioner may have served with the connection of affairs of the State,

but no such distinction as such is noticeable in the provision of

Regulation 13 of 1972 Regulations. The plea that this regulation Civil Writ Petition No.20922 of 2008 : 18 :

would apply to serving members and not to those who are

pensioners may sound attractive, but then how would the State

explain Annexures P-11 and P-12. Admittedly, the petitioner is in

receipt of pension. To me, the source from which the petitioner is

drawing pension would sound immaterial. His pension is debated and

voted by the State Assembly. These are beneficial provisions, which

have allowed reimbursement of medical allowance of retired

employees. Retired employees are recipient of pension. So is the

petitioner. How would the source of pension make any difference for

grant of medical reimbursement? At the most, the amount of

reimbursement may be debatable to that head or source of pension

from which the petitioner is being paid this pension. One cannot

ignore that two of the similarly situated members have earlier been

allowed medical reimbursement and now the same concession has

been denied to the petitioner, which does not appear to be fair.

The writ petition, therefore, deserves to be allowed.

Direction is hereby issued to reimburse the petitioner the medical

expenditure incurred by him while getting eye treatment from PGI,

Chandigarh. There shall be no order as to costs.

April 25, 2011 ( RANJIT SINGH ) ramesh JUDGE