Allahabad High Court
Dr. Surendra Pratap Yadav vs State Of U.P. Thru Prin.Secy. ... on 27 January, 2023
Bench: Vivek Chaudhary
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?[A.F.R.]
Court No. - 4
Case :- WRIT - A No. - 30915 of 2021
Petitioner :- Dr. Surendra Pratap Yadav
Respondent :- State Of U.P. Thru Prin.Secy. Ayush Lucknow And Anr.
Counsel for Petitioner :- Amrendra Nath Tripathi
Counsel for Respondent :- C.S.C.
Hon'ble Vivek Chaudhary,J.
Heard learned counsel for the petitioner and learned Standing Counsel for the State.
Present writ petition is filed by the petitioner challenging the order dated 17.12.2021 passed by respondent no.2 Director, Department of Homeopathy, U.P. 8th Floor, Indira Bhawan, Lucknow. By the said order petitioner is retied w.e.f. 31.12.2021 at the age of 60 years.
The facts of the case are that petitioner is a homeopathic doctor working with the State Government. By notification dated 31.05.2017, the age of the medical officers of the Provincial Medical and Health Service in the State of U.P. was enhanced from 60 years to 62 years. The doctors working under the Provincial Medical and Health Service are doctors of Allopathy. The services of doctors of homeopathy belong to Homeopathic Medical Service Cadre and the benefit of the notification dated 31.05.2017 is not extended to them.
Learned counsel for the petitioner relies upon the judgment of the Supreme Court passed in 'North Delhi Municipal Corporation Vs. Dr. Ram Naresh Sharma and others' reported in 2021 SCC Online SC 540. Paragraph-23 and 24 of the said judgment reads:-
"23. The common contention of the appellants before us is that classification of AYUSH doctors and doctors under CHS in different categories is reasonable and permissible in law. This however does not appeal to us and we are inclined to agree with the findings of the Tribunal and the Delhi High Court that the classification is discriminatory and unreasonable since doctors under both segments are performing the same function of treating and healing their patients. The only difference is that AYUSH doctors are using indigenous systems of medicine like Ayurveda, Unani, etc. and CHS doctors are using Allopathy for tending to their patients. In our understanding, the mode of treatment by itself under the prevalent scheme of things, does not qualify as an intelligible differentia. Therefore, such unreasonable classification and discrimination based on it would surely be inconsistent with Article 14 of the Constitution. The order of AYUSH Ministry dated 24.11.2017 extending the age of superannuation to 65 Years also endorses such a view. This extension is in tune with the notification of Ministry of Health and Family Welfare dated 31.05.2016.
24. The doctors, both under AYUSH and CHS, render service to patients and on this core aspect, there is nothing to distinguish them. Therefore, no rational justification is seen for having different dates for bestowing the benefit of extended age of superannuation to these two categories of doctors. Hence, the order of AYUSH Ministry (F. No. D. 14019/4/2016-E-I (AYUSH)) dated 24.11.2017 must be retrospectively applied from 31.05.2016 to all concerned respondent-doctors, in the present appeals. All consequences must follow from this conclusion."
On the other hand, learned Standing Counsel submits that the benefit of the aforesaid judgment could not be granted to the petitioner inasmuch as in the said case the Union of India had issued a separate order giving benefit of enhancement in age of retirement to the Ayush doctors along with Allopathic doctors.
I have heard learned counsels for the parties and also perused the records and the judgment placed before this Court with their assistance.
In case of Dr. Ram Naresh Sharma (supra), Union of India enhanced the age of retirement of Allopathic doctors working at Delhi from 60 years to 65 years. The said benefit, however, was not extended to Ayush doctors, hence, a claim petition was filed before the Central Administrative Tribunal which was allowed vide order dated 24.08.2017 holding that the Ayush doctors are also entitled to retire at the age of 65 years as the Allopathic doctors. Against the said order, a writ petition was filed before the High Court which was also dismissed by order dated 15.011.2018, affirming the order of the Tribunal. The matter reached the Supreme Court. During pendency of the writ petition, the Central Government issued notification extending the benefit of retirement age of 65 years to the Ayush doctors also, along with Allopathic doctors.
Be the facts as they may, the Supreme Court considered the classification created by the Central Government between the Ayush and doctors of CHS practicing Allopathy and held that the same is discriminatory and unreasonable, since doctors under both the segment are performing the same function of treating and healing their parents. Merely because they are using different mode of treatment, it would not qualify as an intelligible differentia. Thus, the classification to be unreasonable and discriminatory and inconsistent with Article 14 of the Constitution of India. The same are the circumstances of the present case. Doctors practicing Allopathy working under the Provincial Medical and Health Services are given the benefit of retirement at the age of 62 years while petitioner who belongs of Homeopathic Medical Service Cadre and treats his patients through homeopathy is not given the benefit of retirement age of 62 years. The same again is a classification hit by Article 14 of the Constitution of India as held by Supreme Court in case of Dr. Ram Naresh Sharma (supra).
In view thereof, the impugned order dated 17.12.2021 is hereby set aside.
Petitioner is permitted to continue in service till the age of 62 years and he shall be provided all consequential benefits of service in accordance with law.
With the aforesaid, the writ petition stands allowed.
Order Date :- 27.1.2023
Arti/-
[Vivek Chaudhary,J.]
