Dr. Suresh Dutta vs The State Of Assam And 4 Ors
2021 Latest Caselaw 2010 Gua

                                                                     Page No.# 1/7

GAHC010127292021




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                                 Case No. : WP(C)/4008/2021

            DR. SURESH DUTTA
            S/O LATE KALIA DUTTA, R/O VILL-NAKARI, WARD NO. 2, STATION ROAD,
            NORTH LAKHIMPUR TOWN, DIST-LAKHIMPUR, ASSAM-787001



            VERSUS

            THE STATE OF ASSAM AND 4 ORS
            REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVT. OF ASSAM,
            HEALTH AND FAMILY WELFARE DEPARTMENT, DISPUR, GUWAHATI-6

            2:THE COMMISSIONER AND SECRETARY TO THE GOVT. OF ASSAM
             HEALTH AND FAMILY WELFARE DEPARTMENT
             DISPUR
             GUWAHATI-6

            3:THE DIRECTOR OF AYUSH
             DISPUR
             GUWAHATI-781006

            4:THE JOINT DIRECTOR OF HEALTH SERVICES
             LAKHIMPUR
             NORTH LAKHIMPUR

            5:THE FINANCE DEPARTMENT
             REPRESENTED BY THE COMMISSIONER AND SECRETARY TO THE
            GOVERNMENT OF ASSAM
             FINANCE DEPARTMENT
             DISPUR
             GUWAHATI-

Advocate for the Petitioner   : MR. K N CHOUDHURY
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Advocate for the Respondent : SC, HEALTH




                                 BEFORE
                 HONOURABLE MR. JUSTICE KALYAN RAI SURANA

                                           ORDER

Date : 31.08.2021

Heard Mr. K.N. Choudhury, learned senior counsel for the petitioner and Mr. D. Saikia, learned Advocate General of the State, assisted by Mr. B. Gogoi, learned standing counsel for Health Department.

2) It may be mentioned that the learned senior counsel for the petitioner had made his submissions on 26.08.2021.However, on the prayer made on behalf of the learned Advocate General, his part of the hearing on prayer for interim relief was deferred for today.

3) By this writ petition filed under Article 226 of the Constitution of India, the petitioner has prayed for setting aside and quashing of the letter dated 05.06.2021 (Annexure-12), issued by the respondent no. 4, thereby informing the petitioner that on attaining the age of 60 years, he would be superannuating on 31.08.2021. The petitioner has also sought for a direction upon the respondents to extend the age of superannuation to 65 years.

4) In brief, the case of the petitioner is that he is an Ayurvedic doctor and at present he is serving as Senior Medical Officer (Ayur) at Panigaon S.H.C., Lakhimpur. The Ministry of Health and Family Welfare, Govt. of India, vide notification dated 31.05.2016, had extended the age of superannuation of Page No.# 3/7

allopathic doctors and dental surgeons from 60 to 65 years. Following the same, the then Finance Minister, Govt. of Assam (now the Chief Minister, Govt. of Assam), in para-32.29 of his budget speech delivered on 26.07.2016, proposed to raise the age of retirement of Govt. Doctors belonging to all streams to 65 years. The said speech was followed by Cabinet decision dated 27.07.2016 and consequently, the Govt. of Assam, vide notification dated 30.07.2016, extended the age of retirement of only allopathic doctors (all cadres) and dental surgeons to 65 years and consequential notification was issued by the Health and Family Welfare (B) Department, Govt. of Assam.

5) The Director of AYUSH, Assam vide letter dated 12.08.2016, forwarded to the Health and Family Welfare Department, Govt. of Assam, representations received from various Committees and Associations of Homeopathic and Ayurvedic doctors for extension of age of retirement to 65 years, which also contained his recommendation. The Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy, (AYUSH for short), vide notification dated 24.11.2017, had enhanced the age of superannuation to 65 years, with a rider that doctors would hold administrative position till the age of 62 years and thereafter their service shall be placed at non- administrative positions. However, the Govt. of Assam had not extended the benefit of enhancing the age of superannuation of AYUSH Doctors serving under the State Govt. to 65 years, as such, the aggrieved petitioner has filed the present writ petition.

6) In view of the nature of grievance raised in this writ petition, let a rule returnable on 20.09.2021 be issued. The respondents are also put to notice to Page No.# 4/7

respond as to why in the event the writ petition is allowed in favour of the petitioner, he shall not be entitled to salary and other service benefits in full in terms of the decision of the Supreme Court of India in the case of North Delhi Municipal Corporation Vs. Ram Naresh Sharma, 2021 SCC OnLine SC 540 [para- 25 of the said judgment (para-24 in Annexure-16) as quoted herein below]. The respondents are directed to positively file their affidavit-in-opposition on or before 17.09.2021. Reply affidavit, if any, shall be filed by the petitioner at least 1 day prior to the next date of listing with advance copy to the respondents. The learned standing counsel for the respondents shall be ready with the records for the perusal of the Court.

7) Heard both sides on the prayer for interim relief. The learned senior counsel for the petitioner has submitted that this is a fit and proper case for issuance of an ad interim direction upon the respondents to stay the operation of the impugned letter dated 05.06.2021, by which the petitioner would be superannuated on 31.08.2021. In support of the prayer for interim relief, the learned senior counsel for the petitioner has referred to the case of North Delhi Municipal Corporation (supra), and relying on para-24 and 25 of the said judgment (para-23 and 24 in Annexure-16), it is submitted that the Supreme Court of India had held as follows:-

"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 .

25. In light of the above discussion, the appellant's actions in not paying the respondent doctors their due salary and benefits, while their counterparts in CHS Page No.# 5/7

system received salary and benefits in full, must be seen as discriminatory. Hence, we have no hesitation in holding that the respondent-doctors are entitled to their full salary arrears and the same is ordered to be disbursed, within 8 weeks from today. Belated payment beyond the stipulated period will carry interest, at the rate of 6% from the date of this order until the date of payment. It is ordered accordingly. The appeals are disposed of in above terms without any order on cost."

8) It is further submitted that denial of the benefit of enhancement of age of superannuation to AYUSH doctors has been deprecated by the High Court of Jharkhand in the case of Dr. Jyotish Chandra Singh Vs. The State of Jharkhand & Ors., (2019) 0 Supreme(Jhk) 1748. It is further submitted that the Central Government had the competence to make laws including Ordinance, Order, Bye- laws, Rule, Regulation etc. in connection with medical profession as per List 26 of List III of Schedule 7 of the Constitution of India, as such, the notification dated 24.11.2017 issued by the Ministry of AYUSH would override any law inconsistent with the said notification. In this regard, the learned Senior Counsel for the petitioner has referred to the provisions of Article 254 read with Article 13 of the Constitution of India. It is also submitted that the previous order of this Court i.e. order dated 11.01.2019 passed by the Division Bench of this Court in WA 65/2018, declining to grant service benefit to the members of the respondent no. 1 Association beyond the age of superannuation was passed prior to the decision of the Supreme Court of India in the case of North Delhi Municipal Corporation (supra). By referring to the statements made in the writ petition, it is submitted that the petitioner is not a member of the respondent no. 1 association in W.A. 65/2018.

9) The learned Senior Counsel for the petitioner has made an alternative Page No.# 6/7

submission to the effect that if the Court is not inclined to pass appropriate orders directing the respondent to extend the service period of the petitioner beyond 31.08.2021, the date of his superannuation on the ground that in the event this matter is decided against the petitioner, State would suffer any loss, in the event his alternative submission would be that the petitioner may be permitted to continue his service without claiming any remuneration pending the decision of this writ petition.

10) The learned Advocate General does not oppose the admission of this writ petition. However, he opposes the prayer for interim relief at this stage by submitting that the Govt. had taken a conscious decision for not extending the age of superannuation for the Government doctors practicing on AYUSH side. It is also submitted that there are justifiable reasons for the Government not to extend the age of superannuation of Government doctors practicing in AYUSH side beyond 65 years.

11) It is seen that as on date, the State Government has not extended the age of superannuation of the doctors practicing in AYUSH side. Therefore, it appears that on facts, the cited case as well as the present case in hand stand in similar footing. Nonetheless, the Court is of the considered opinion that until the matter is heard finally decided in favour of the petitioner, and appropriate direction is issued to direct the State respondents to extend the age of superannuation from 60 years to 65 years, if by an interim direction, the impugned letter dated 05.06.2021 is interfered with, it would amount to granting final relief to the petitioner. Assuming for a moment that the case is finally decided against the petitioner, then the State would suffer irreparable loss Page No.# 7/7

as it would not be permissible to recover any salary and emoluments paid to the petitioner for service actually rendered.

12) The Court is conscious of the alternative submission made by learned Senior Counsel for the petitioner that the respondent authorities may be directed to continue the service of the petitioner without the petitioner claiming any financial benefits. However, this Court being a Court of equity, is not inclined to pass an order which would amount to compel the petitioner to render service without any claim to remuneration, which would amount to injustice to the petitioner. However, assuming for a moment that the case is finally decided in favour of the petitioner, the Court would not be powerless to grant reliefs similar to one granted to the respondent doctors as mentioned in para-25 of the case of North Delhi Municipal Corporation (para-24 of the Anexure-16) . Accordingly, any interim order at this stage is refused.

13)      List on 20.09.2021.




                                                           JUDGE



Comparing Assistant