Chandi Charan Roy & Ors vs The State Of West Bengal & Ors
2021 Latest Caselaw 5697 Cal

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                IN THE HIGH COURT AT CALCUTTA

                       Civil Appellate Jurisdiction

                            APPELLATE SIDE

  Present:-

  THE HON'BLE JUSTICE Subrata Talukdar.

  THE HON'BLE JUSTICE Kesang Doma Bhutia.



                           MAT No. 407 of 2020
                                    With
                          IA No.C.A.N. 1 of 2020


                         Chandi Charan Roy & Ors.
                                    VS.
                     The State of West Bengal & Ors.


For the Appellants             : Mr. Monoranjan Jana
                                Mr. Paresh Chandra Yadav


For the State                 : Mr. Pinaki Dhole
                               Ms. Kakali Samajpaty


Hearing concluded on          : 28.09.2021

Judgment on                   : 17.11.2021
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Kesang Doma Bhutia, J:-


     This Appeal is directed against the order of dismissal passed by

the Hon'ble Single Bench in Writ Petition No. 454(W) of 2017 on

13.02.2020.


     Facts

giving rise to this appeal in gist is that the Writ

Petitioners/ Appellants have been appointed as Part-Time

Homeopathic Doctors for the purpose of running Homeopathic

Charitable Dispensaries in Rural West Bengal by virtue of Scheme

introduced by Department of Health and Family Welfare with

Department of Panchayats and Rural Development in 1978, with no

age limit for entry and exit at a consolidated honorarium of Rs-250/-

per month and which has been enhanced to Rs-16000/- per month at

present.

By virtue of Memorandum No. H/AUH/379/3H-270/851 dated

23.05.1988, such part-time Homeopathic Doctors were allowed to

work beyond the age of 65 but, with a rider that they should be

physically and mentally alert for performing their duties.

However, the Government vide. Memorandum No.

HF/O/AYUSH/425IA-10/06 dated 16.07.2012, has brought changes

in the entry and exit age of such part-time Homeopathic Doctors and

thereby Entry age has been fixed at less than 65 years and Exit age

(retirement age) at 65 years.

Assailing such Notification of 2012 to be in violation of the rights

guaranteed under Articles 14 and 21 of the Constitution of India, the

Petitioners/Appellants have filed W.P. 425(W) of 2017, alleging they

have been appointed prior to the issuance of the impugned

Notification dated 16.07.2012, which is prospective in nature and not

retrospective in effect. The Govt. and/or Statutory Authorities cannot

deprive them their right to work as Part-Time Doctors beyond the age

of 65 years. Their part-time service tenure is not guided by the

impugned Notification and, that too with retrospective effect.

The Hon'ble Single Bench after hearing Ld. Counsel for both

sides as well as considering the documents filed by them and citations

referred, was pleased to dismiss W.P. 425(W) of 2017, with the finding

that the emoluments of Government servants and their terms of

service are governed by statute or statutory rules which may be

unilaterally altered by the Government without the consent of the

employees. It is therefore absurd to suggest that the age limit of the

writ petitioners could not be altered or modified by way of impugned

Notification.

Therefore, the only point for determination in this Appeal is

whether the impugned Notification of 2012, has violated the rights of

the writ petitioners as guaranteed under Articles 14 and 21 of the

Constitution?

It is true that the Health Department with the Panchayat

Department for the purpose of setting up of Homeopathic Dispensaries

in Rural Bengal, floated a scheme for appointment of part-time

Homeopathic Doctors and Compounders-cum-Dressers at a monthly

honorarium of Rs250/- and Rs150/- sometime in the year 1978.

However, no copy of such Notification has been filed by either side.

Subsequently, Government of West Bengal, Department of

Health and Family Welfare, AUH Branch, by issuing fresh Memo dated

23.05.1988, laid down the procedure for appointment of such part-

time Homeopathic Doctors and Compounders-cum-Dressers at Gram

Panchayats, their duty hours, educational qualifications, requisite

experience, age criterion and allied matters. No age limit was

prescribed either for entry or exit in such Notification, but the only

requirement was that the selected candidates were to be physically fit

and mentally alert for performing their duties.

Then the State Government by issuing the impugned

Memorandum on 16.07.2012, has been pleased to fix the age limit for

entry and exit to be less than 65 years and not more than 65 years

respectively and thereby did away with the earlier Notification dated

1988, where there was no age limit for entry as well for exit.

So, by filing the writ petition, the petitioners have challenged the

introduction of the new age policy for exit of part time homeopathic

doctors employed under the Scheme of 1978 or under the Notification

of 1988 by State Government.

It is settled law that Policy decisions of the State or its

Authorities are not to be disturbed/interfered with unless they are

found to be grossly arbitrary or irrational. The scope of Judicial

Review when examining Policy of the Government is to check whether

it violates the fundamental rights of the citizens or is opposed to the

provisions of the Constitution of India or opposed to any statutory

provisions or manifestly arbitrary. From time to time the Authorities of

the State take decisions bearing upon the exigencies of service

prevailing in each situation. Courts cannot interfere with the Policy

either on the ground that a better, fairer or wiser alternative is

available. Unless the Policy is manifestly perverse and contrary to

deeply embedded Constitutional principles, Courts should normally

leave Administration to the Administrators.

In State of Punjab and others vs. Ram Lubhya Bagga and others,

(1998) 4 SCC 117, it was inter alia held "when Government form its

policy, it is based on number of circumstances of facts law including

constraints based on its resources. It is also based on expert opinion

and should not be subject of Judicial Review.

In the present case, the State Respondents in their Affidavit in

Opposition have clearly stated that when the Scheme was introduced

there was less availability of trained educated personnel. Considering

the status of temporary and part-time engagement and to make the

Scheme successful, no restriction on age was imposed. Subsequently,

with the passage of time considering the huge availability of formal

educated manpower and enhancement of honorarium of such part-

time engagement, the upper age limit has been fixed at 65 years. The

intention of the Government by issuing the impugned Memorandum is

to fix the exit age of part-time Homeopathic Doctors at 65 years and

not beyond 65 years as stipulated by the earlier Notification of 1988.

Therefore, the Government is the appropriate authority wants those

part-time Homeopathic Doctors who have crossed the age of 65 years

no more eligible to continue with their part-time engagement beyond

1st August 2012.

Ld. Counsel for the appellants/ Writ Petitioners submits the that

impugned Memorandum is prospective in nature and cannot have

retrospective effect. The part-time Doctors who were employed before

the coming into the force of the Memorandum dated 2012, being

Governed by the Notification dated 1988, there is no upper age limit

for exit. It is submitted that the impugned Memorandum being

prospective in nature would be applicable only to those persons who

are and who will be engaged as part-time Homeopathic Doctors in

Gram Panchyats after August, 2012. If this court is to accept such

contention of the Ld. Counsel for the appellants, then there will arise

discrimination between part-time homeopathic doctors who were

engaged prior to 2012 and those who are engaged after 2012. Those

who got appointment prior to 2012 with no age limit for exit will

continue to work even after they attend the age of 65 years, while their

counterparts or colleagues who joined after 2012, have to leave the

part-time job on their attaining the age of 65 years. Then there will be

a clear violation of Article 14 as there will be two types of age for exit

(superannuation) in respect of similarly placed part-time Homeopathic

Doctors in the same department and under the same service condition

on the same amount of honorarium and employed under the same

authorities. Article 14 of the Constitution of India forbids class

legislation and this court cannot create two types of treatment for

persons placed in the same situation and belonging to the same

category.

Therefore, whether the age of superannuation should be

increased and decreased and the date from which it should be effected

is a matter of administrative policy and the Court should not interfere

which is exclusively in the jurisdiction of the executive and, for the

solitary fact that the above Policy would hurt the interests of the Writ

Petitioners who are a section of part-time homeopathic doctors.

Consequently this Court holds, that there is no violation of the rights

guaranteed under Article 21 of the Constitution of India arising out of

the impugned policy.

Further, the Hon'ble Supreme Court in Reserve Bank of India V.

Sasranaman, AIR 1986 SC 1830, has observed " It has to be borne in

mind that in Service Jurisprudence there cannot be any service rule

which would satisfy each and every employee and its constitutionality

has to be judged by considering whether it is fair, reasonable and does

justice to majority of the employees and fortune of some individuals is

not the touchstone".

In the light of the above discussion this Court refrains itself from

interfering with the findings of the Hon'ble Single Bench as this Court

does not find any merit in the Present Appeal.

MAT No. 407 of 2020 along with IA No.CAN 1 of 2020 stands

dismissed.

There will be no order as to costs. Interim order, if any, stands

vacated.

All parties shall act in terms of the copy of the order downloaded from the official website of this Court.

Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.

I Agree.

(Subrata Talukdar, J.) (Kesang Doma Bhutia, J.)