Bombay High Court
Dr. Kaushik Girishchandra Rathod , Dy ... vs The Honourable Administrator , U.T. ... on 20 August, 2024
2024:BHC-AS:33298-DB
12647.23-wp.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.12647 OF 2023
Digitally
Dr. Kaushik Girishchandra Rathod ..... Petitioner
signed by
BASAVRAJ
BASAVRAJ GURAPPA
GURAPPA PATIL Vs.
PATIL Date:
2024.08.20
14:47:40
+0530 The Hon'ble Administrator & Ors. ..... Respondents
Mr.Rajeev N. Kumar a/w. Mr. Amey Kanse for the petitioner
Mr. H. S. Venegavkar for the respondent UoI.
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
RESERVED ON : MAY 6, 2024
PRONOUNCED ON : AUGUST 20, 2024
JUDGMENT (PER : CHIEF JUSTICE)
1. Heard learned counsel representing the respective parties.
2. This petition filed under Article 226/227 of the Constitution
of India, seeks to challenge the validity of an order, dated 3 rd
August 2023 passed by the Mumbai Bench of Central
Administrative Tribunal (hereinafter referred to as the Tribunal)
dismissing the Original Application No.675 of 2021, instituted by
the petitioner with a prayer to enhance his age of
superannuation to 65 years. By the impugned order, the
Tribunal has not acceded to the said prayer.
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3. The petitioner was working as Medical officer in regular
capacity w.e.f. 18th October 1994 under the services of Union
Territory Administration of Dadara & Nagar Haveli and Daman &
Diu (hereinafter referred to as the "UT Administration") who
retired on attaining the age of superannuation w.e.f. 31 st January
2020 at the age of 60 years.
4. The Ministry of Health & Family Welfare, Government of
India, vide Notification dated 31st May 2016 promulgated
Fundamental (Amendment) Rules 2016 which came into force on
the date of their publication in the official gazette w.e.f. 31 st May
2016. By the said amendment rules, the age of superannuation
in respect of General Duty Medical Officers and Specialists in
Teaching, Non-Teaching and Public Health sub- cadres of Central
Health Service was enhanced to 65 years. By another
Notification issued and published on 5th January 2018 in the
Official Gazette the Ministry of Public Health, Government of
India promulgated the Fundamental (Amendment) Rules 2018
whereby Fundamental Rule 56(b) was substituted and it was
provided that in respect of various other categories of Medical
Officers age of superannuation shall be 65 years. The Ministry of
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Personnel, Public Grievance and Commissions issued another
Notification on 11th August 2018 which was also published in the
Official Gazette on the said date whereby Fundamental Rule 56
(bb) was again substituted providing therein that the age of
superannuation in respect of Doctors belonging to Central Health
Service, Indian Railways Medical Service, AYUSH and working
under the Ministry of AYUSH, Doctors working under the
Directorate of Armed Forces Medical Service, Medical Officers of
the Indian Ordnance Factories Health Service, Dental Doctors
under the Department of Health & Family Welfare, Dental
Doctors under the Ministry of Railways and General Duty Medical
Officers, Specialists Grade Doctors and Teaching Medical Faculty
working in Bhopal Memorial and Research Centre, shall be 65
years.
5. These Notifications, dated 31st May 2016, 5th January 2018
and 11th August 2018 were issued under the proviso of Article
309 of the Constitution of India by the different Ministries of
Central Government and hence, are applicable so far as the
Medical officers working under different departments of Central
Government are concerned. However, no corresponding
notification/order in respect of age of superannuation of the
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Medical officers working under the UT Administration was issued
as a result of which even after issuance of the Notifications
dated, 31st May 2016, 5th January 2018 and 11th August 2018,
the Medical Officers working under the UT Administration were
retired on attaining the age of 60 years.
6. Accordingly, the petitioner was retired on his attaining the
age of 60 years from the services of UT Administration. The UT
Administration issued a Notification on 28th November 2020
whereby the age of superannuation of Doctors working under the
UT Administration as a Specialist and General Duty Medical
Officers was enhanced to 65 years. On issuance of the
Notification, dated 28th November 2020, though the petitioner
had already retired on 31st January 2020, he made a
representation on 5th December 2020 to the UT Administration
stating therein that the Notifications, dated 31 st May 2016, 5th
January 2018 and 11th August 2018 were issued by the
Government of India prior to his superannuation they are
applicable to the petitioner as well. He prayed by making the
said representation that the petitioner be considered for being
re-employed against the post of General Duty Medical Officer till
he attained the age of 65 years. It was also stated that in case
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of Lecturers and Professors on enhancement of age of
superannuation by the Central Government, their age of
superannuation was also enhanced from 60 to 65 years and
accordingly, he was also entitled to serve till he attained the age
of 65 years. The petitioner made a reminder representation on
3rd February 2021, however, as per the learned counsel for the
petitioner, his prayer was not paid any heed to. The petitioner
instituted the proceedings of Original Application No.344 of 2021
before the Tribunal which was finally disposed of by means of
order dated 8th June 2021 directing the UT Administration to take
decision on the representation so preferred by the petitioner.
Pursuant to the said direction issued by the Tribunal on 8 th June
2021, the representation of the petitioner was decided by means
of an order dated 6th October 2021 passed by the Dy. Secretary,
Health & Family Welfare of the UT Administration rejecting the
claim of the petitioner. This rejection order, dated 6 th October
2021 necessitated the petitioner to institute the proceedings of
the Original Application No.675 of 2020 which has been
dismissed by the Tribunal by means of the impugned order,
dated 3rd August 2023. Hence, this writ petition.
7. It has been argued by learned Counsel for the petitioner
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that the petitioner has been subjected to hostile discrimination
inasmuch as earlier similar notifications were issued by the
Central Government for enhancing age of superannuation of the
University and College Teachers and benefit of such
enhancement of age of superannuation was made available to
the teachers of Central Universities and Colleges under the UT
Administration with effect from the same date on which such
benefit was extended to the teachers working in the Universities
and Colleges. The submission, thus, is that by not extending the
benefit of enhancement of age of superannuation in terms of
Notifications, dated 31st May 2016, 5th January 2018 and 11th
August 2018 issued by the Central Government, the petitioner
has been discriminated and hence, such an action of the UT
Administration is not liable to be sustained.
8. In support of his submission that even in the matter of age
of superannuation, the employees cannot be discriminated and
differentiated, reliance has been placed by learned Counsel for
the petitioner on a judgment of the Hon'ble Supreme Court in
the case of North Delhi Municipal Corporation Vs. Dr. Ram
Naresh Sharma & Ors.1 wherein it was held that there cannot
(2021) 17 SCC 642
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be any difference between Allopathic and AYUSH Doctors. He
has also drawn attention of the Court to another order of the
Hon'ble Supreme Court, dated 30 th January 2022 passed in the
case of State of Rajasthan Vs. Dr. Mahesh Chandra
Sharma2. Reliance has also been placed by learned Counsel for
the petitioner on the judgment of Telangana in the case of Dr.
Chiliveru Ravinder & Ors. Vs. State of Telangana & Anr. 3
Reliance has also been placed by the learned counsel for the
petitioner in the case of Dr. Antoo Saxena d/o. Shri S. P.
Saxena Vs. State of Rajasthan4 and also on the judgment of
the Hon'ble Supreme Court in the case of State of Gujarat &
Ors. Vs. Dr. P. A. Bhatt & Ors.5.
9. On the other hand, Mr. Venegavkar, learned Counsel
representing the UT Administration, has vehemently opposed the
writ petition and submitted that the Notifications, dated 31 st May
2016, 5th January 2018 and 11th August 2018 issued by the
Government of India, will not apply to the Medical Officers
working under the UT Administration, ipso facto and so far as
Order dated 30.01.2024 in Special Leave to Appeal (C) No.14308-14318/2022
Order dated 28.06.2023 in WP No.15770 of 2022
Order dated 08.04.2024 in D.B.Civil WP No.2674 of 2024
AIR 2023 SC 2164
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the Medical Officers working under the UT Administration are
concerned, the Notification was issued on 28 th October 2020 by
which date the petitioner had already retired. According to Mr.
Venegavkar, the Notification, dated 28 th November 2020 issued
by the UT Administration does not have retrospective application
and hence, the prayers made by the petitioner for permitting
him to discharge his duties till he attains the age of 65 years,
has rightly been rejected by the Tribunal.
10. Drawing our attention to the order, dated 6 th October 2021
passed by the Dy. Secretary, Health & Family Welfare, UT
Administration, Mr. Venegavkar has argued that by the said
order, the claim of the petitioner was rightly rejected giving
reasons and further that the parity being claimed by the
petitioner with the age of enhancement in the case of teachers is
not tenable as the application of the Notification, dated 28 th
November 2020 has specifically been made applicable only to
the Medical officers serving on the said date and accordingly, the
petitioner does not have any case. He, thus, prays that the
petition be dismissed.
11. We have considered the submissions made by the learned
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Counsel for the respective parties and have also perused the
records available before us on this petition. The sole ground
urged by the learned Counsel for the petitioner impeaching the
impugned order, dated 3rd August 2023 passed by the Tribunal is
that the Tribunal has completely failed to consider the plea
raised by the petitioner regarding the hostile discrimination
meted out to him. He has stated that whenever the age of
superannuation has been enhanced by the Central Government
while issuing Notifications under Article 309 of the Constitution
of India in respect of the Central Government employees such as
the teaching staff, benefit of such enhancement in age of
superannuation has been extended to the employees working
under the UT Administration as well and accordingly, in his
submission, he has stated that the Tribunal has completely failed
to address itself to the plea of discrimination raised by the
petitioner.
12. Fundamental Rules applicable to the Central Government
employees are framed under Article 309 of the Constitution of
India which provides that the Appropriate Legislature may
regulate the conditions of service of persons appointed to public
services and posts in connection with the affairs of the Union or
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of any State.
The proviso appended to Article 309 provides that it shall
be competent for the President and the Governor to frame rules
regulating the service conditions of the persons employed in
connection with the affairs of the Union or the State, as the case
may be.
13. Thus, the scope of power of Union of India to frame rules
regulating conditions of service in terms of the proviso appended
to Article 309 extends to regulating the conditions of service of
persons employed in connection with the affairs of the Union and
such rules, if framed by the Union of India will not be ipso facto
applicable to any other category of employees such as the
employees serving in connection with the Union Territories
unless the Union Territory concerned, by resorting to legal
process, either adopts such rules framed by Union of India or
makes its own rules governing conditions of service of the
employees working under it. Accordingly, it cannot be said that
as and when the Fundamental Rules were amended by the Union
of India by issuing Notifications, dated 31st May 2016, 5th
January 2018 and 11th August 2018 the age of superannuation of
employees of the working under the UT Administration would get
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automatically enhanced. For governing the conditions of
services, UT Administration is fully empowered to frame its own
set of rules and accordingly, in our considered opinion, the age
of superannuation of the Medical Officers working under the UT
Administration would get enhanced to 65 years only on issuance
of Notification by the UT Administration, which in this case, was
issued on 28th November 2020.
14. It is also well settled that any law, be it a statute, statutory
rules or even an administrative order/circular operates
prospectively unless the law itself provides for its retrospective
application. If we peruse the Notification, dated 28th November
2020 issued by the UT Administration, in the instant case, what
we find is that the said Notification does not anywhere state that
it would apply retrospectively. Hence, the submission made on
behalf of the petitioner that he is entitled to the benefit of
enhancement of age of superannuation utpo 65 years in terms of
the Notification, dated 28th November 2020, is highly misplaced
for the simple reason that on the date of issuance of said
Notification, the petitioner had already retired having attained
the age of 60 years of superannuation on 31st January 2020.
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15. As far as the arguments advanced by the learned Counsel
for the petitioner regarding the alleged hostile discrimination
meted out to the petitioner, we may only observe that merely
because in case of a particular set of employees, certain rules
were made applicable retrospectively, it will not entitle another
set of employees to claim such parity. Regulating the conditions
of service including the age of superannuation lies in the realm
of the employer and unless the rules are accordingly amended
by the employer, no employee can be said to have any vested
right to retire at a particular age. In this legal perspective, if we
examine the order, dated 6th October 2021 passed by the Dy.
Secretary, Health & Family Welfare Department of the UT
Administration whereby the claim of the petitioner was rejected,
what we find is that the said order is a reasoned order and
addresses the issues raised by the petitioner regarding
discrimination vis-a-vis teaching staff. The order further clearly
states that for enhancement of age of superannuation in non-
Central Health Scheme Cadre, the Ministry of Home Affairs,
Government of India had issued instructions to the UT
Administration to take decision in respect of the Medical officers
working under the UT Administration at the level of UT
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Administration itself and hence, the claim put-forth by the
petitioner stands on a different footing than the case of the age
of superannuation enhanced in the matter of employees who
hold the teaching post. The order further states that in case of a
person holding a teaching post working in the Government
colleges whose age was enhanced from 62 to 65 years,
instructions were issued by the concerned Ministry to the UT
Administration for re-employment of the persons holding such
posts who had completed the age of 65 years in accordance with
the guidelines framed by the University Grants Commission.
Thus, in our opinion, the permissible distinction is clearly drawn
so far as the teaching staff and the petitioner are concerned.
16. Heavy reliance has been placed by the learned Counsel for
the petitioner on the judgment of the Hon'ble Supreme court in
the case of Dr. Ram Naresh Sharma (supra) and the
judgment of the Rajasthan High Court in the case of Dr.
Mahesh Chandra Sharma (supra), against which the SLP was
dismissed by the Supreme Court vide order dated 30 th January
2024. In both the aforesaid matters, the issue of discrimination
was raised in respect of the Doctors of Allopathic Stream vis-a-
vis Doctors working in AYUSH Stream and it was held that the
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Doctors of both the streams perform similar nature of functions
and duties and hence, no discrimination will be permissible. In
our opinion, the said judgments do not serve any purpose for the
petitioner in the instant case for the reason that it is not a case
of one category of employees working in two different streams.
In any event, unless and until the Notification, dated 28 th
November 2020 is made applicable retrospectively, the same, in
our opinion, cannot cover the Medical officers who had retired
prior to the said date. The argument based on the ground of
hostile discrimination is, thus, not made out.
17. In the aforesaid view, rest of the judgments cited by the
learned counsel for the petitioner also do not come to the rescue
of the petitioner.
18. For the reasons aforesaid, we are not inclined to interfere
with the impugned order passed by the Tribunal.
19. Resultantly, the writ petition is dismissed.
20. However, there will be no order as to costs.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
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