Mahinder Narain, J. (Oral):— Rule D.B
2. This petition was filed by Mr. P.K Jain, while he was District Judge of Delhi, for reimbursement of medical expenses incurred by him, from the respondents.
3. The petitioner, while he was District Judge, Delhi, had undergone Artery Graft Surgery at the Escorts Foundation, at Okhla, New Delhi, and wanted to be reimbursed for whole of the expenses connnected therewith. As the expenses incurred were not reimbursed this petition was filed.
4. For the purpose of dealing with matters that need to be considered and adjudicated upon in this petition, it is necessary to keep in mind certain provisions of the Constitution of India, certain provisions of the Delhi Higher Judicial Service Rules, and some provisions of the All India Services (Medical Attendance) Rules, 1954.
5. Article 233 of the Constitution concerns appointment of District Judge, and reads as under:—
233. Appointment of district judges.—
(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shallbe made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.
Article 236 of the Constitution defines District Judge. The said Article reads as under:—
236. Interpretation.—In this Chapter—
(a) the expression “district judge” includes judges of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge;
(b) the expression “judicial service” means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts, inferior to the post of district judge.
6. From Article 236(b), it is clear that the Constitution of India declares the District Judge a “post”. The provisions of Article 233 and Article 236 of the Constitution, read with Article 235 make it clear that the post of District Judge is a Constitutional post.
7. The Rules of the Delhi Higher Judicial Service are applicable to the District & Sessions Judge, Delhi. This is clear from the schedule in the said rules, which mentions District & Sessions Judge as one of the posts in the Delhi Higher Judicial Service. In any case, it was not, and it cannot be disputed by the respondents that the District Judge of Delhi, which post the petitioner was holding at the time of filing this petition, is a member of the Delhi Higher Judicial Service.
8. In view of what is stated hereabove, it is clear that the post of the District Judge of Delhi is a Constitutional post and that Constitutional post is to be found in the Delhi Higher Judicial Service Rules.
9. There is no rule in the Delhi Higher Judicial Service Rules relating to Medical attendance for District Judge like the petitioner. Therefore Rule 27 thereof is relevant which reads as under:—
27. Residuary Matters: In respect of all such matters regarding the conditions of Service for which no provision or insufficient provision has been made in these rules, the rules, directions or orders for the time being in force, and applicable to officers of comparable status in the Indian Administrative Service and serving in connection with the affairs of the Union of India shall regulate the conditions of such service.
10. In view of the abovesaid rule, and the silence of the Delhi Higher Judicial Service Rules in the matter of medical attendance for District Judge of Delhi, one shall have to look at the rules which will apply to officers of comparable status in the Indian Administrative Service.
11. What is this comparable status mentioned in the above said rule 27? It is clear to us that the word “comparable” in Rule 27 must refer to similar, not equivalent.“Similar” in this context would exclude the concept of “lower than”. In JT 1993 (4) S.C 618 (All India Judges' Association & others v. Union of India & others), the Supreme Court has had the occasion to deal with Judicial Services, and said:
“………The parity is between the political executive, the legislators and the Judges and not between the Judges and the administrative executive. In some democracies like the U.S.A, members of some State judiciaries are elected as much as the members of the legislature and the heads of the State. The Judges, at whatever level they may be, represent the State and its authority unlike the administrative executive or the members of the other services. The members of the other services, therefore, cannot be placed on par with the members of the judiciary, either constitutionally or functionally…… The society has a stake in ensuring the independence of the judiciary, and no price is too heavy to secure it.
12. It is clear to us that the post of District Judge of Delhi is a Constitutional post, whereas necessarily all the posts in the Indian Administrative Service, which have been constituted by law made by Parliament in exercise of powers under Article 312 of the Constitution, i.e All India Service Act, 1951, are posts under a statute, or statutory posts.
13. Essentially, therefore, the Constitutional post of District Judge cannot be considered to be lower than that of any of the posts held by any member of the Indian Administrative Service. It is only in this sense that the post of District Judge is comparable to the posts in the Indian Administrative Service, and the benefits that are available to the members of the Indian Administrative Service are also available to the“District Judge” postulated by Article 236(b) of the Constitution of India.
14. We are, therefore, of the view that the rules which will apply with regard to medical reimbursement vis-a-vis the medical expenses incurred or to be incurred by the District Judges, would be the All India Services (Medical Attendance) Rules, 1954.
15. According to rules 4 and 7 thereof, the said Rules apply to every member of the Service, and the members of his family.
16. In the instant case, as we are concerned with medical attendance and reimbursement of medical bills of the District Judge who had personally undergone surgery, he would be entitled to benefit of rule 4 and rule 7 of the said All India Services (Medicala Attendance) Rules, and would be entitled to the reimbursement of medical expenses.
17. Inasmuch as the the respondents have already reimbursed the entirety of the medical expenses which have been incurred, to the petitioner, we hold that the reimbursement was in accordance with applicable Rules. No further orders are required in connection with medical expenses incurred by the petitioner, as the said reimbursement has been made in accordance with law.
The petition is disposed of accordingly.