CIVIL APPEAL 1656 of 2008 on 16 April 1980

1. The State Of Bihar

2. The Secretary cum Commissioner, Health, Medical Education and Family Welfare Department, Govt. of Bihar, Vikas Bhawan, Patna

3. The Special Secretary, Health (Medical Education, Family Welfare and Indigenous Medicine) Department, Govt. of Bihar, Vikas Bhawan, Patna

4. The Joint Secretary cum Director, Health (Medical Education, Family Welfare and Indigenous Medicine) Department, Govt. of Bihar, Vikas Bhawan, Patna Welfare and Indigenous Medicine) Department, Govt. of Bihar, Vikas Bhawan, Patna

5. The Principal Secretary cum Commissioner, Finance Department, Govt. of Bihar, Old Secretariat, Patna of Bihar, Old Secretariat, Patna

6. The Principal, Maharani Rameshwari Bhartiya Chikitsa Vigyan Sansthan, Mohanpur, Police Station Darbhanga, District Darbhanga Sansthan, Mohanpur, Police Station Darbhanga, District Darbhanga

7. The Deputy Secretary, Department of Finance, Govt. of Bihar, Patna

with

Civil Writ Jurisdiction Case No.1151 of 2009

====================================================== Dr.Syed Fazlullah Quadri, son of late S. Ahmed Quadri, resident of Mohalla Milkiyana, P.S. Phulwarisharif District Patna, at present working as Professor in the Govt. Tibbi College and Hospital Kadamkuan, Patna

.... .... Petitioner

Versus

1. The State Of Bihar

2. The Secretary, Health Department, Govt. of Bihar, Patna

3. The Finance Commissioner, Govt. of Bihar, Patna 4.The Director I.S.M., (Indigenous Medicine) Health Department, Govt. of Bihar, Patna 4.The Director I.S.M., (Indigenous Medicine) Health Department, Govt. of Bihar, Patna

5. The Deputy Finance Commissioner, Bihar, Patna

6. The Deputy Director (Unani), I.S.M.- Health Department, Govt. of Bihar, Patna Bihar, Patna

7. The Principal Govt. Tibbi College and Hospital, Kadamkuan, Patna

with

Civil Writ Jurisdiction Case No.4497 of 2009

======================================================

Sri Amal Chand Yadav, son of late Jadu Pd. Yadav, R/o village Sahpur, Ramji Tola (Barki Bhelahi), P.S. Nauhatta, District Saharsa

.... .... Petitioner

Versus

1. The State Of Bihar through the Commissioner cum Secretary, Health &

Family Planning, New Secretariat Building, Patna 2.The Jt. Secy. to Govt. in the Deptt, of Health, New Secretariat Building, Patna

3. The Dy. Secy. to Govt. in the Deptt. of Finance, Old Secretariat Building, Patna

4. The Director, Desi Chikitsa, Bihar, New Secretariat Building, Patna 5.The Dy. Director, Homeopathy, Desi Chikitsa, Bihar, New Secretariat Building, Patna

6. The Distt. Indigenous Medical Officer, Madhepura

====================================================== Appearance :

(In CWJC No.1656 of 2008)

For the Petitioner/s : Mr. Bipin Kumar Sinha Mr. Sunil Kumar Ravi For the Respondent/s : Ms. Jahan Ara, A.C. to AAG V (In CWJC No.1151 of 2009) For the Petitioner/s : Mr. Bahzad Akhtar For the Respondent/s : Mr. Maheshwar Dhar Dwivedi, SC 23 Mr. Sourendra Pandey, A.C. to SC23

(In CWJC No.4497 of 2009) For the Petitioner/s : Mr. Dharmendra Kr.Paswan Mr. Rana Randhir Singh For the Respondent/s : SC10

CORAM: HONOURABLE MR. JUSTICE MIHIR KUMAR JHACAV ORDER

14 12-12-2012

All these three writ applications relate to a common

grievance on behalf of the three petitioners as with regard to their extension of age of superannuation from 60 to 62 years and as such they have been heard together and are being disposed of by this common judgment.

2. In C.W.J.C.No. 1656/2008 the petitioner Dr.

Ramesh Chandra Prasad has stated that he was appointed as a Lecturer in the Department of Kriya Shariram in Maharani Ramwshwari Bhartiya Chikitsa Vigyan Sansthan, Mohanpur, Darbhanga on 16.4.1980 under the orders of the Vice Chancellor of Kameshwar Singh Darbhanga Sanskrit University. It is the case of the petitioner that the aforesaid College was taken over by the State Government on 12.1.1985 with effect from 10.1.1985 under the provisions of Bihar Nizi Chikitsa (Bhartiya Chikitsa Padhati, Mahavidyalaya Grahan) Adhiniyam, 1985. The further case of the petitioner is that in terms of the aforesaid Act a Screening Committee was constituted which after screening the Biodata of all the teaching and non-teaching employees of the College had submitted its report on 18.12.1985 and had recommended for absorption of the petitioner in Govt. service. The petitioner, however, has clarified that when no final decision with regard to his absorption was taken he had filed a writ application, C.W.J.C.No. 583/1991 seeking a direction from this Court for his absorption as also regularizing and confirming his service in the Government pay scale. It, however, appears that this Court in the order dated 21.9.1992 while disposing of the aforesaid C.W.J.C.No. 583/1991 did not issue such direction and had only made an observation to the following effect:

“We do not consider necessary or expedient to issue a mandamus against respondent no.2. We, however, direct respondent no.2 (Health Commissioner) to pass final order in accordance with law on the basis of the report submitted by the Screening Committee within six weeks from the date of production of a copy of the order.”

3. It is the case of the petitioner that in terms of the aforementioned direction in the order dated 21.9.1992 in C.W.J.C.No. 583/1991 no final order was passed whereafter he has filed another writ application, C.W.J.C.No. 958/1995 which is said to be still pending. It has also been stated in the writ application that on 31.1.2007 the Health Department vide Memo No. 74 dated 31.1.2007 had regularized the service of the petitioner as a Lecturer with effect from 10.1.1985 i.e. from the date of take over of the College. From a reading of the aforementioned notification dated 31.1.2007 it would appear that the State Government had taken over the service of the petitioner alongwith 15 other teaching personnel of the same College with effect from 10.1.1985 and thus, on the strength of this order it can be easily said that the petitioner became a Government servant as envisaged in 1985 Act.

4. The grievance of the petitioner, however, is that even when he has become a government servant and part and parcel of Health service of the State Government, he has not been given the benefit of the amendment made in Rule 73 of the Bihar Service Code as with regard to the age of superannuation

enhanced for the doctors of Bihar Health Service and the Bihar Medical Teachers Service which has been enhanced from 60 to 62 years by a Government notification dated 23.11.2007. According to the petitioner on account of this anomaly he has not been given the benefit of his continuing in service beyond 31.1.2008, the date on which he had completed 60 years of age. The petitioner’sfurther grievance in fact is that if the Government notification dated 23.11.2007 is made applicable even in his case, he too could have got the benefit of continuing in service till attaining his age of 62 years i.e. upto 31.1.2010. In this regard he has also placed on record the office order issued by the College on 24.1.2008, whereby and whereunder he was intimated of his retirement taking place on 31.1.2008 directing him to hand over charge to Dr. Kamla Kant Kushwaha. By filing a supplementary affidavit the petitioner has also placed on record the report of the Pay Review Committee dated 31.10.2008 and a regulation framed by the U.G.C. on 23.9.2009 indicating the enhancement of age of retirement of the teachers in Government Colleges to 62 years.

5. In C.W.J.C.No. 1151/2009 the petitioner Dr. Syed Fazlullah Quadri while seeking an identical relief of continuance in service till 62 years of age has stated that he was initially appointed in July, 1978 in the Department of health service as Unani Medical Officer, Sasaram, whereafter he was posted in Unani Dispensary at Bikramganj and subsequently also to Aurangabad. According to the petitioner he had thereafter been transferred as a Demonstrator in Tibbi College and Hospital, Kadamkuan, Patna where he was elevated to the post of a Lecturer and subsequently was also promoted as a Professor in 1993 and his date of retirement on completion of sixty years of his age was 31.12.2008. This petitioner also has relied on the notification of the State Government dated 23.11.2007 to contend that the benefit of his continuance in service alike the incumbents of Bihar Health Service and the Bihar Medical Teachers Service should have been extended upto 62 years which would have allowed him to continue in service till 31.12.2010. In this regard he has also brought on record the Government notification dated 25.2.2009 according to which even the doctors under Indigenous Medicine and also the teachers of Indigenous Medicine were made entitled, alike the doctors of Bihar Health Service and the teachers of different medical colleges under the Bihar Medical Teachers Service, with a provision for continuation in service upto completion of 62 years of age. The grievance of the petitioner, however, is that since this notification was issued on 25.2.2009 he could not get the benefit of the same as his original date of retirement based on 60 years of his age was 31.12.2008.

6. Though there is no counter affidavit in the first

case i.e. C.W.J.C.No. 1656/2008 a counter affidavit has been filed in this case (C.W.J.C.No. 1151/2009) wherein it has been stated that for the doctors under Indigenous System of Medicine the provision for extension of age of retirement has been made effective only with effect from 1.2.2009 in view of the notification issued on 25.2.2009 and since the petitioner had already stood superannuated with effect from 31.12.2008 he cannot be given the benefit of the same. In a supplementary counter affidavit it has also been clarified that the doctors of Bihar Health Service or teachers under Bihar Medical Teachers Service are not at par with the doctors and teachers under Indian System of Medicine and Homeopathy, inasmuch as they are controlled by two separate directorates. It has, therefore, been explained that the Government decision dated 23.11.2007 was confined only for the doctors of Bihar Health Service and the Bihar Medical Teachers Service of Allopathic side which benefit could not be given to a doctor of Ayurvedic or Homeopathic or Unani medicine.

7. The respondents have further sought to explain this aspect by filing yet another second supplementary counter affidavit enclosing the constitution of a separate Directorate for Indigenous Medicine including Homeopathic vide Health Department letter No. 1258 dated 6.5.1978. To distinguish the cases of doctors of Bihar Health Service vis-à-vis doctors of Indigenous medicine the respondents have also enclosed the notification dated 29.9.1984 which according to the respondents would be an answer for not treating the doctors of Indigenous medicine as part and parcel of Health Service. It is with this ended view that the respondents have also enclosed a notification dated 21.12.2010 framing Rules under Proviso to Article 309 of the Constitution of India for the doctors of Indigenous medicine which would constitute them a separate class. A notification dated 17.5.1994 has also been brought on record to show that the doctors under Unani Medicine not only constituted a separate cadre but their seniority list was also separate which would make them a class apart in comparison to the doctors of Bihar Health Service which necessarily belong to Allopathic side. Reliance has also been placed on an order of this Court dated 18.7.2011 in C.W.J.C.No. 8301/2008 wherein this Court had held that the Ayurvedic doctors in absence of any evidence could not be treated to be equivalent to the doctors of Bihar Health Service and the Bihar Medical Education Service.

8. In the third case, C.W.J.C.No. 4497/2009 the petitioner Amal Chand Yadav has stated that he belongs to Homeopathy Branch and was appointed as a Homeopathic Medical Officer by an office order dated 5.11.1973. According to this petitioner he remained posted in different Homeopathic hospital and discharged his duties and his last place of posting was as Homeopathic Medical Officer in the District Hospital, Madhepura. He too has relied on the Government notification dated 23.11.2007 issued in respect of the doctors of Bihar Health Service and the Bihar Medical Education Service in whose cases the age of retirement has been enhanced from 60 to 62 years. His grievance is that he was also made to retire with effect from 31.1.2009 on completion of 60 years of age though he too alike doctors of Bihar Health Service was entitled to continue in service till completion of 62 years of age i.e. upto 31.1.2011.

9. In this case also a counter affidavit has been filed wherein almost a similar stand has been taken by the respondents as in C.W.J.C.No. 1151/2009 by enclosing the same documents as its annexures.

10. Learned counsel for the petitioners appearing in all these three cases have submitted that the expression "Bihar Health Service" should not be confined only to the doctors of Allopathic Branch rather it should invariably be treated to include

not only Allopathic but also Ayurvedic, Homeopathic or Unani doctors working under the Health department of the State Government. It is in this background that the learned counsel for the petitioners in all threse three cases have proceeded that once the State Government had taken a policy decision for enhancing the age of retirement from 60 to 62 years by the Government notification dated 23.11.2007, no discrimination could have been made in the matter of giving benefit of age of retirement. Reliance in this regard has also been placed by them on a judgment of this Court in the case of Ram Nath Manjhi vs. The Bihar State Food & Civil Supplies Corporation Ltd. & ors., reported in 2009(4) BLJ 159, as well as on the provisions of Bihar District Ayush Medical/ State Ayush Medical Service (Appointment on Regular/ Contract basis and service Conditions) Rules, 2010 published in 2011(1) PLJR 35 (Journal section).

11. On the other hand, learned counsel for the State on the basis of the averments made in the two counter affidavits filed in these cases have submitted that there can be no rule of thumb as with regard to age of superannuation for the doctors of different disciplines and the doctors of Ayurvedic, Homeopathic or Unani Medicine including the teachers in the Government Ayurvedic, Homeopathic and Unani Colleges cannot claim as a matter of right the same age of superannuation as extended in the cases doctors of Allopathic Branch. In this regard it has also been contended that they constitute different cadres and the State Government therefore is fully competent to fix different date of superannuation.

12. In the considered opinion of this Court while there would be no difficulty in holding that the petitioner do not belong to Bihar Health Service which is confined exclusively to the doctors of Allopathic Branch, their case still for same age of superannuation as given to the doctors of Bihar Health Service, meaning thereby doctors of Allopathic Branch needs to be considered. It is not in doubt that the Government has ultimately allowed the benefit of extended age of superannuation even to the doctors of Indigenous Medicine i.e. doctors of Homeopathic, Ayurvedic and Allopathic Branch as would be evident from the Government notification dated 25.2.2009 which for the better appreciation is quoted hereinbelow:

“Hkkjrh; lafo/kku ds vuqPNsn 309 ds ijUrqd }kjk iznÙk “kfDr;ksa dk iz;ksx djrs gq, fcgkj jkT;iky ,rn ~}kjk fcgkj lsok lafgrk 1952 esa fuEufyf[kr la”kks/ku djrs gS %& fcgkj lsok ¼la”kks/ku½ lafgrk 2009

1- laf{kIr uke ,oa izkjEHk

¼i½ ;g fcgkj lsok ¼la”kks/ku½ lafgrk 2009 dgh tk ldsxhA ¼ii½ ;g igyh Qjojh] 2009 ds izHkko ls izo`Ùk gksaxhA 2- fcgkj lsok lafgrk dk fu;e 73 fuEukfyf[kr }kjk izfrLFkkfir fd;k tk,xkA

¼i½ ljdkjh lsod dh vfuok;Z lsokfuo`fr dh frfFk og frfFk gS ftl frfFk dks og 60 o"kZ dh vk;q iwjh dj ysrk gS] ijUrq fcgkj LokLF; lsok ,oa fcgkj fpfdRlk f”k{kk lsok ds lnL; dh vfuok;Z lsokfuo`fÙk dh frfFk og gksxh ftl frfFk dks og 62 o’kZ dh vk;q iwjh dj ysrk gSA ijUrq vkSj ;g fd ns”kkh fpfdRlk i)fr ds fpfdRlk inkf/kdkfj;ksa ,oa fpfdRlk f”k{kk ds “kS{kf.kd inkf/kdkfj;ksa dh vfuok;Z lsok fuo`fÙk dh frfFk og gksxh ftl frfFk dks og 62 o’kZ dh vk;q iwjh dj ysrk gSA

¼ii½ mi fu;e ¼i½ ds v/khu lsokfuo`fÙk dh frfFk ftl ekg esa iM+rh gS ml ekg dh vafre frfFk dks ljdkjh lsod lsok fuo`r gksxk] fdUrq ;fn lsokfuo`fr dh frfFk ekg dh igyh frfFk dks iM+rh gks] rks og mlds iwoZorhZ ekg dh vafre frfFk dks lsok fuo`r gksxkA

fcgkj jkT;iky ds vkns”k ls] g0@& ¼lquhy dqekj flag½ ljdkj ds mi lfpo 13. A bare comparison of this notification with the

earlier notification issued by the State of Bihar for the doctors of Bihar Allopathic Service dated 23.11.2007, relevant portion whereof is quoted hereinbelow:

“ vf/klwpuk la[;k 3,&5&ls0fu0&04@2006 -------@ Hkkjrh; lafo/kku ds vuqPNsn 309 ds ijUrqd }kjk inÙk “kfDr;ksa dk iz;ksx djrs gq, fcgkj jkT;iky ,rn }kjk fcgkj lsok lafgrk 1952 esa fuEufyf[kr la”kks/ku djrs gS fcgkj lsok ¼la”kks/ku½ lafgrk 2007

laf{kIr uke] ykxw gksuk ,oa izkjEHk

¼i½ ;g fcgkj lsok ¼la”kks/ku½ lafgrk 2007 dgk tk ldsxk ¼ii½ ;g rqjr izHkko ls izo`r gksxkA

fcgkj lsok lafgrk ds fu;e 73 fuEufyf[kr }kjk izfrLFkkfir fd;k tk,xk ¼i½ ljdkjh lsod dh vfuok;Z lsokfuo`fr dh frfFk og frfFk gS ftl frfFk dks og 60 o’kZ dh vk;q iwjh dj ysrk gSA ijUrq fcgkj LokLF; lsok ,oa fcgkj fpfdRlk f”k{kk lsok ds lnL; ds vfuok;Z lsokfuo`fr dh frfFk og gksxh ftl frfFk dks og 62 o’kZ dh vk;q iwjh dj ysrk gSA

¼ii½ mi fu;e ¼i½ ds v/khu lsokfuo`fr dh frfFk ftl ekg esa iM+rh gS ml ekg dh vafre frfFk dks ljdkjh lsod lsokfuo`r gksxk] fdUrq ;fn lsokfuo`fr dh frfFk ekg dh igyh frfFk dks iM+rh gks rks og mlds iwoZorhZ ekg dh vafre frfFk dks lsokfuo`r gksxkA

fcgkj jkT;iky ds vkns”k ls] g0@& ¼lquhy izlkn JhokLrko½ ljdkj ds mi lfpo] foRr foHkkx will leave nothing for speculation that the Government had taken decision in phases, firstly for Allopathic doctors and thereafter for rest of the doctors or under Indigenous Medicine. Technically the argument of the learned counsel for the State can have no flaw that it is always open for the employee to have a different age of superannuation for the employees of different cadres and the service but the State being a model employer in a Welfare State cannot act arbitrarily in taking a decision affecting the service condition of its employees. It is not the case of the respondents that they have not found other doctors of Indigenous Medicine unworthy of continuance in service and in fact when the notification was issued even in respect of extension of age of superannuation of doctors of Indigenous Medicine on 25.2.2009 making it operative with effect from 1.2.2009, a question would arise as to why the doctors of Indigenous Medicine of a particular period i.e. those retiring between November, 2007 to January, 2009 should be deprived of the benefit of enhancing of age of retirement. It has to be also taken into account that all such doctors not only function as Government doctors at the same block, sub-division and district level but are complementing each other in extending treatment to patient under various system of medicine being as Allopathic, Homeopathic, Ayurvedic or Unani.

14. This Court has been made to understand that only a dozen of doctors of Indigenous Medicine have fallen in this period of November, 2007 to January, 2009 who could not get the benefit of continuing in service on account of different dates of notification issued for retirement of the doctors of Bihar Health Service and other doctors of Indigenous Medicine, i.e. Ayurvedic, Homeopathic or Unani. As a matter of fact when all these three writ applications were heard, the petitioners had already retired from service and even had completed their 62 years of age. Thus, for the petitioners it is only question of payment of salary in lieu of retirement benefit for a period of two years. As a matter of fact they all are getting minimum of 50% of their last salary as retirement benefit and therefore, if the Government sympathetically considers their cases on common principle of uniform date for extension of age they at best would be entitled for an additional one year salary and nothing more.

15. It is true that the fixation of age of retirement is essentially a matter of executive policy as was held in the case of K. Nagaraj vs. State of A.P., reported in AIR 1985 SC 551 and would be largely dependent on the “felt need of the administration” as held by the Apex Court in the case of Osmania University vs. V.S. Muthurangam, reported in AIR 1997 SC 2758, but then a word of caution has been put in by the Apex Court itself in the case of T.P. George vs. State of Kerala, reported in 1992

Supp. (3) SCC 191, wherein it was held as follows:

“There are precedents within our country itself for fixing the retirement age at 55 or for reducing it from 58 to 55. Either the one or the other of these two stages is regarded generally as acceptable, depending upon the employment policy of the Government of the day. It is not possible to lay down an inflexible rule that 58 years is a reasonable age for retirement and 55 is not. If the policy adopted for the time being by the Government or the legislature is shown to violate recognized norms of employment planning, it would be possible to say that the policy is irrational since, in that event it would not bear reasonable nexus with the object which it seeks to achieve. But such is not the case here. The reports of the various Commissions, from which we have extracted relevant portions, show that the creation of new avenues of employment for the youth is an integral part of any policy governing the fixation of retirement age. Since the impugned policy is actuated and influenced predominantly by that consideration, it cannot be struck down as arbitrary or irrational. We would only like to add that the question of age of retirement should always be examined by the Government with more than ordinary care, more than the State Government has bestowed upon it in this case. The fixation of age of retirement has minute and multifarious dimensions which shape the lives of citizens. Therefore, it is vital from the point of view of their well-being that the question should be considered with the greatest objectivity and decided upon the basis of empirical data furnished by scientific investigation. What is vital for the welfare of the citizens is, of necessity, vital for the survival of the State. Care must also be taken to ensure that the statistics are not perverted to serve a malevolent purpose.”

16. The Apex Court again in the case of Rajat Baran Roy vs. State of W.B., reported in (1999) 4 SCC 235, had held that the doctors of two services are to be treated at par in all respects and the retirement age would automatically become applicable as given in one service. Thus, it would be clear from the aforesaid judgment of the Apex Court that the parity of service condition including the matter of superannuation maintained for a long spell of time should not be disturbed.

17. Here also the State Government has in fact maintained the same parity by allowing the same age of superannuation for the doctors of all the disciplines being Allopathic, Homeopathic, Ayurvedic or Unani. It is only by issuance of a notification for Allopathic doctors in November, 2007 and for rest of them of Indigenous Medicine i.e. Ayurvedic, Homeopathic or Unani in February, 2009 the age of retirement has been extended from different dates which has become the bone of contention. The Government, therefore, having maintained the parity for all the doctors should not have ordinarily fixed two different dates of retirement unless there are compelling reasons for the same. Nothing, however, has been brought on record by the respondents in their counter affidavits for fixing the two separate dates for enhancement of age of retirement, 62 years of age of retirement for the doctors of Allopathic Branch in November, 2007 and same 62 years of age of retirement for the doctors of Indigenous Medicine in February, 2009. It has to be kept in mind that the parity including pay scale and the service conditions for all these doctors have been almost identical in view of the recommendation and its acceptance of Pay Revision Committee reports. 18. Thus, this Court would find it necessary to issue a direction to the Principal Secretary of the Health Department to reconsider the case of the petitioners for fixing their age of superannuation as also extend them the same benefit which has been given to their counter-part in Allopathic Medicine with effect from November, 2007 and in fact also to other doctors in Ayurvedic, Homeopathic or Unani discipline with effect from 1[st]February, 2009. As noted above, these are very few and stray cases which would entitle hardly a dozen of persons like the petitioners to get benefit of two years extended service but if done so, it would still augur well for the Respondents embedded to the concept Welfare State which has duty to not only act reasonably but in the best of tradition of a model employer.

19. This Court would, accordingly, direct the Principal Secretary of the Health Department to obtain the order of the State Government as with regard to individual grievance of the petitioners as raised in these three writ applications at an early date.

20. In order to expedite the matter, this Court would give liberty to the petitioners to file their individual representation placing on record the relevant facts and it is expected that the Principal Secretary of the Health Department will obtain the order of the State Government within three months of filing of such a representation and the consequential benefits, if any, will also be extended to them within next three months from the date of taking of such decision.

21. With the aforesaid observations and directions, all these three applications are disposed of.

(Mihir Kumar Jha, J)Patna High Court Dated the 12[th]December 2012 N.A.F.R./Surendra/-