Gajendra Prasad Sinha vs Uoi And Ors.
2011 Latest Caselaw 742 Del

              IN THE HIGH COURT OF DELHI AT NEW DELHI


                          WRIT PETITION(C) NO. 549/2011


                                          Date of Decision: 8th February, 2011

        GAJENDRA PRASAD SINHA                      ..... Petitioner

                               Through:   Mr. Sagar Saxena, Adv.

                          versus

        UOI AND ORS                             ..... Respondent

Through: Mr. Sachin Datta, Adv. with Mr.Abhimanyu Kumar, Adv. for UOI

CORAM:

HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

1. Whether Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

SUDERSHAN KUMAR MISRA, J.(Oral)

1. The present writ petition is filed by the petitioner seeking

directions to the respondent to enhance the age of superannuation of

General Duty Medical Officers (GDMO) belonging to Central Health

Services (CHS) bringing it at par with the other sub-cadres.

2. The brief facts of the case are that in CHS, apart from the

GDMO, there are three other sub-cadres, i.e. (i) Teaching Specialists,

(ii) Non-teaching Specialists and (iii) Public Health Specialists. Initially

the age of superannuation for all the cadres was 60 years. The

petitioner was appointed as GDMO on 12 th November, 1986 and

thereafter, his service was regularized on 22 nd October, 1991. He was

promoted as Senior Medical Officer on 22nd October 1995; as Chief

Medical Officer on 27th October 2001, and as Chief Medical Officer

(Non-functioning Selection Grade) on 22nd October, 2004.

3. The Government of India felt very concerned with the high

attrition rate of government doctors through voluntary retirement,

resignation and foreign assignment. In order to diagnose the cause,

and to suggest a remedy, a committee called the „J.A.Chaudhary

Committee‟ was constituted. After an in-depth analysis of the

situation, the committee submitted its report in May 2006. It

recommended that the age of superannuation be increased from 60 to

62 years. The respondent adopted that recommendation and increased

the age of superannuation for Public Health Specialists and Non-

teaching Specialist sub-cadres to 62 years, and for Teaching

Specialists sub-cadre to 65 years. However, for the GDMO sub-cadre,

the retirement age was kept at 60 only.

4. Certain officers who were aggrieved by the aforesaid act of

the respondent approached the Central Administrative Tribunal for

relief. After their petitions were rejected by the Central Administrative

Tribunal, they approached this Court in Dr. Asha Aggarwal & Ors. v.

Union of India, WP (C) Nos. 460, 557, 643 and 2115 of 2007. These

petitions were disposed of by a Division Bench on 11 th January 2008,

leaving the question of enhancement of the age of GDMOs to be

decided by the 6th Central Pay Commission. Paragraph 20 of that

judgement reads as under:

"20...... Though we find prima facie that it was not justified to exclude GDMOs and action of the Government suffers from vice of hostile discrimination and is, therefore, violative of

Articles 14 and 16 of the Constitution, we do not express our final opinion on this aspect and would leave the matter to the Sixth CPC to decide about the justification for the enhancement of the age of GDMOs. "

5. Earlier, before the matter was referred to the 6 th Central

Pay Commission (for short, „CPC‟) in an Office Memorandum dated 1st

August, 2007 the Government of India also recommended increase or

enhancement of the age of superannuation of the GDMOs from 60 to

62 years for consideration by the 6th CPC. This O.M. was also noted by

the Division Bench of this Court in paragraph 12 of the aforesaid

judgement. The Office Memorandum reads as under:

"Subject: Proposal for enhancement of age of superannuation of General Duty Medical Officers of Central Health Service, from 60 to 62 years-reg. The undersigned is directed to forward herewith a proposal for enhancement of age of superannuation of General Duty Medical Officers of Central Health Service from 60 to 62 years, for consideration of 6 th CPC."

6. Ultimately, the report of the 6th CPC was received. The

recommendation of that Pay Commission with regard to increase in the

age of superannuation for all the GDMOs in paragraph 6.2.4 in Chapter

6.2 thereof, dealing with the "Age of superannuation and voluntary

retirement" reads as under:

                      "6.2.4.   .   .    .   The   Commission
                recommends that        the   current   age  of

superannuation should be maintained. Further, except in the case of Scientists and Medical Specialists, no extensions should be filled by incumbents who have sufficient period of service left before the stipulated age of retirement. Medical Specialists and Scientists may, however, be allowed extension of service of upto 2 years on a case to case basis."

A reading of the said paragraph, as a whole, shows that

the enhancement of age of superannuation was not recommended by

the 6th CPC because of the need, inter alia, for, "maintaining a

youthful profile of the bureaucracy that will be more dynamic, result

oriented and better attuned to the needs of their constituents."

7. Counsel for the respondent refers to a decision of this

Court in W.P. (C) No. 1005/2008 decided on 17th July, 2008 titled All

India GDMO Association through its President & Ors. vs. Union

of India through the Secretary, Ministry of Health and Family

Welfare , where a similar question arose out of a decision that had

been rendered by the Central Administrative Tribunal. Before the

Tribunal also, the same question, i.e. whether the age of

superannuation of the GDMOs should be increased from 60 to 62 years

to place them at par with the Non-Teaching Specialist sub-cadre,

Teaching Specialist sub-cadre and Public Health sub-cadre was raised.

In that matter, the petitioners had relied on the aforesaid decision of

Dr. Asha Aggarwal & Ors. vs. Union of India and Anr., (supra)

which has now been relied upon in this matter also. In deciding the

aforesaid case of All India GDMO Association through its

President & Ors. (supra), the Division Bench has also referred to the

aforesaid paragraph 6.2.4 of the 6th CPC Report, which has been

reproduced above, and concluded that no fault can be found in the

decision of the Tribunal. In other words, quite clearly, this Court

found no basis, either in fact or in law, for interfering with the

recommendations of the 6th CPC or for issuing any mandate to the

government in this regard.

8. Counsel for the petitioner, however, seeks to distinguish

the aforesaid decision of the Division Bench in All India GDMO

Association through its President & Ors. (supra) and submits that

this judgement does not deal with the vires of the finding of the 6 th

CPC. I do not agree. In paragraph 4, of the said decision states as

follows:

"In view of the report of the 6th CPC, we cannot find any fault in the decision taken by the Tribunal."

This clearly shows that the Court was satisfied with the fact

that a duly constituted expert body had examined the matter, and

therefore, the Tribunal‟s reliance on the same was unimpeachable. In

other words, the conclusion of the 6th CPC, as also the reasons given

by that Commission, for reaching its conclusion had certainly been

examined by the Court. I do not find any reason to hold otherwise.

9. It is well settled that Courts do not constitute expert

bodies and the recommendations made by expert bodies like the 6 th

CPC, as in this case, cannot be overturned unless the

recommendations made by such an expert body are completely

absurd. To my mind, the aspect of increase in age of superannuation

of GDMOs has been properly examined by the 6th CPC and its

recommendation cannot be termed as ultra vires and should not be

struck down. Counsel for the petitioner is also not in a position to

place any authority in support of the proposition that the Court should

interfere and strike down the recommendation of a duly constituted

Pay Commission, and thereafter, also issue a mandate to the

Government of India to increase the retirement age.

10. In this context, in State of U.P. & Ors. v. U.P. Sales

Tax Officers Grade II Association (2003) 6 SCC 250, the Supreme

Court has held as follows:-

"11. There can be no denial of the legal position that decision of expert bodies like the Pay Commission is not ordinarily subject to judicial review obviously because pay fixation is an exercise requiring going into various aspects of the posts held in various services and nature of the duties of the employees."

Similarly, in this case also, the decision of the 6th CPC

regarding the age of superannuation has also been taken after

examining the various aspects of the post of GDMO including the

nature of duties to be performed in that post, and I see no reason to

interfere.

11. This writ petition is dismissed.

SUDERSHAN KUMAR MISRA, J.

FEBRUARY 08, 2011 rd