The Kerala High Court, while observing that the subject matter is about the financial assistance and medical treatment to be given to medically boarded out disabled soldiers due to 100 percent disability attributable to service, deemed it fit to convert the petition as a Public Interest writ petition.
The Division Bench of Chief Justice S. Manikumar and Justice Shaji P. Chaly heard a petition seeking following reliefs:
i. Issue a writ of continuing mandamus directing the respondents to fix the amount of Constant Attendant Allowance payable to Ex-servicemen boarded out of service on account of 100 percent disability attributable to service at an amount of Rs 25,000 per month at least, taking into account the prevailing rates to be paid as remuneration to a full time attendant.
ii. Issue a direction to respondents to review the policy of the Central Government in respect of Constant Attendant Allowance payable to Ex-servicemen who are boarded out of service due to 100 percent disability attributable to service.
iii. Issue a direction to the respondents to fix date of implementation of enhanced rate of Constant Attendant Allowance (as per 7th CPC) retrospectively from 01.01.2016 (as done by the 6th Pay Commission during their time) instead of 01.07.2017 and to disburse arrears in that regard to all eligible persons at the earliest.
iv. Issue a declaration that the petitioner who is 100 percent disabled and paraplegic is entitled to exercise his fundamental right to die with dignity by adopting the procedure of euthanasia since he, who requires full time assistance of a third person, is unable to employ a full time attendant from out of the meagre amount of Rs 6,750 paid as Constant Attendant Allowance every month.
v. To declare that the petitioner and other invalidated soldiers are also entitled for treatment under the ECHS policy at part with other commissioned officers and in the private rooms of empanelled hospitals and to direct the respondents to pass orders accordingly.
According to the petitioner, he was formerly a corporal working in the Indian Air Force and has been invalidated out from service on 17.09.2002 on account of disability, which is attributable to military service.
He is aggrieved by inaction on part of the respondents to positively consider his request for enhancement of ‘Constant Attendant Allowance’, under which only a meager amount of Rs 6750 per month is sanctioned at present.
He has also espoused the cause of other similarly situated invalidated defence personnel with disability attributable to service and contended that huge discrimination is shown to invalidated soldiers while availing treatment in ECHS empanelled hospitals.
The Court noted that the petitioner has approached the High Court with the aid provided by the Kerala Legal Services Authority.
Even though the Registry has raised an objection, the counsel for the petitioner has re-presented the papers, stating that ‘KELSA has directed a writ petition to be filed’. Accordingly, a petition has been filed under Article 226 of the Constitution.
When the matter came up before a single Judge, the Central Government Counsel raised an objection, as to the maintainability of the writ petition and submitted that going by the reliefs, petition ought to be filed before the Armed Forces Tribunal.
However, the learned single Judge, vide order dated 13.12.2022, ordered that ‘it will be appropriate to place the matter before the Division Bench handling Public Interest Litigation’. Thus, after taking necessary orders, the matter is placed before the High Court.
Pursuant to a decision of the Supreme Court in Common Cause (A Regd. Society) v. Union of India [(2018) (5) SCC 1], High Court of Kerala has issued circular No. 01/2021 dated 07.09.2021.
In the light of the judgment of the Supreme Court and guidelines stated supra, the Bench is of the view that relief No.(iv) sought for, cannot be granted by the High Court. However, considering the averments even though an objection has been raised by the Central Government Counsel regarding the maintainability of the petition on the ground that a petition can be filed before the Armed Forces Tribunal, and not before the Court under Article 226 of the Constitution of India, since the subject matter is about the financial assistance and medical treatment to be given to medically boarded out disabled soldiers due to 100% disability attributable to service, the High Court deemed it fit to convert the instant writ petition as a Public Interest writ petition.
On December 21 , when the matter came up for hearing, Suvin R. Menon, Central Government Counsel submitted that as per instructions, the petitioner is taking treatment in Kochi. He further submitted that under rule 146A of the High Court Rules, Public Interest Litigation of this nature is not maintainable. Said submission is placed on record. The Court directed to file a counter affidavit in the second week of January, 2023.