Jharkhand High Court
Dr. Rabindra Nath Prasad vs The State Of Jharkhand on 24 September, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 209 of 2021
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1. Dr. Rabindra Nath Prasad, aged about 66 years, son
of Late Bihari Singh, resident of Kushwaha Tola, Block
Road, Barharwa, P.O. and P.S. Barharwa, District
Sahibganj.
2. Dr. Kapildeo Ram, aged about 64 years, son of Late
Jadunath Ram, resident of Village & P.O. Borio, District
Sahibganj.
3. Dr. Ram Prasad Gupta, aged about 61 years, son of
Late Nandlal Gupta, resident of At. E-303, Harihar
Estate, Kusum Vihar, Road No.4, Morabadi, P.O.
Morabadi, P.S. Bariatu, District Ranchi. .......Petitioners
Versus
1. The State of Jharkhand.
2. The Principal Secretary, Schedule Caste, Schedule
Tribe, Minority and Other Backward Classes, Welfare
Department, Govt. of Jharkhand, having its office at
Project Building, Dhurwa, P.O. and P.S. Dhurwa,
District Ranchi.
3. The Principal Secretary, Planning and Finance
Department, Govt. of Jharkhand, having its office at
Project Building, Dhurwa, P.Ο. and P.S. Dhurwa,
District Ranchi.
4. The Principal Secretary, Personnel, Administrative
Reforms and Rajbhasha Department, Govt. of
Jharkhand, having its office at Project Building,
Dhurwa, P.O. and P.S. Dhurwa, District Ranchi.
5. The Secretary, Health, Medical Education and Family
Welfare Department, Govt. of Jharkhand, having its
office at Nepal House, Doranda, P.O. and P.S.
Doranda, District Ranchi. Respondents
With
-------
1. Dr. Girish Chandra Prasad, aged about 67 years,
son of Late Bhagwan Prasad, resident of Laxmi Niwas,
Krishnapuri, Road No.-1, Chutia, Ranchi, P.O.
Krishnapuri, P.S. Chutia, District Ranchi.
2. Dr. Shambhu Nath Bhagat, aged about 66 years,
son of Sri Bhagwat Prasad Bhagat, resident of Goldag
Patti, P.O. & P.S. Nath Nagar, District Bhagalpur.
... ... Petitioners
Versus
1. The State of Jharkhand.
2. The Principal Secretary, Schedule Caste, Schedule
Tribe, Minority and Other Backward Classes, Welfare
Department, Govt. of Jharkhand, having its office at
Project Building, Dhurwa, P.O. and P.S. Dhurwa,
District Ranchi.
3. The Principal Secretary, Planning and Finance
Department, Govt. of Jharkhand, having its office at
Project Building, Dhurwa, P.Ο. and P.S. Dhurwa,
District Ranchi.
4. The Principal Secretary, Personnel, Administrative
Reforms and Rajbhasha Department, Govt. of
Jharkhand, having its office at Project Building,
Dhurwa, P.O. and P.S. Dhurwa, District Ranchi.
5. The Secretary, Health, Medical Education and Family
Welfare Department, Govt. of Jharkhand, having its
office at Nepal House, Doranda, P.O. and P.S.
Doranda, District Ranchi. ......... Respondents
With
Dr. Umesh Nandan Prasad Srivastava, aged about 68
years, son of Late Jai Mangal Prasad Srivastava, resident
of Parn Kutir, Sharda Colony, Power House Road, Chutia,
P.O. and P.S. Chutia, District Ranchi. ... Petitioners
Versus
1. The State of Jharkhand.
2. The Principal Secretary, Schedule Caste, Schedule
Tribe, Minority and Other Backward Classes, Welfare
Department, Govt. of Jharkhand, having its office at
Project Building, Dhurwa, P.O. and P.S. Dhurwa,
District Ranchi.
3. The Principal Secretary, Planning and Finance
Department, Govt. of Jharkhand, having its office at
Project Building, Dhurwa, P.Ο. and P.S. Dhurwa,
District Ranchi.
4. The Principal Secretary, Personnel, Administrative
Reforms and Rajbhasha Department, Govt. of
Jharkhand, having its office at Project Building,
Dhurwa, P.O. and P.S. Dhurwa, District Ranchi.
5. The Secretary, Health, Medical Education and Family
Welfare Department, Govt. of Jharkhand, having its
office at Nepal House, Doranda, P.O. and P.S.
Doranda, District Ranchi. ......... Respondents
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CORAM : HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioners : Mr. Saurabh Shekhar, Adv.
For the Respondents : Mr. Ratnesh Kumar, SC(L&C)-I
: Mr. Praveen Akhauri, SC (M)-I
: Mr. Shubham Mishra, AC to SC(M)II
-------
CAV on:- 09/07/2024 Pronounced on:-24/09/2024
Heard learned counsel for the parties. Since all
these writ applications involves common issue; as such
all were heard together and being disposed of by this
common judgment
2. Initially, these writ applications were preferred
for a direction upon the respondents authorities to
forthwith enhance the age of superannuation of these
petitioners from 60 years to 65 years on the ground that
the recommendation of 6th Pay Revision Commission,
which has been adopted by the Government of
Jharkhand on 15.09.2008; whereby, the committee has
recommended that all the doctors should be treated at
par for the purpose of pay and allowance and service
conditions and also on the ground that the Allopathic
Doctors in the state of Jharkhand have already been
given the benefit of enhancement in the age of
superannuation from 60 to 65 years vide circular dated
23.07.2011 and the petitioners may be permitted to
discharge their duties till they attain the age of 65 years.
The petitioners by way of interlocutory
application being I.A. No. 427 of 2021, has further prayed
of quashing of limited portion of resolution dated
08.01.2021; whereby a decision has been taken to
enhance the age of Ayush Doctors from 60 to 65 years
with a stipulation that it will be having effect
prospectively.
3. The brief fact of the case as per the pleadings
is that the petitioners are Ayush Medical Officers, in the
department of health and their joining and retirement are
as under:-
S. Case.no Petitioner Date of Date of Attains 65
no appointmen retirement years on
t
1. W.P.(S) Petitioner 14.12.1983 30.06.2014 30.06.2019
of 2021 Petitioner 15.12.1983 30.01.2016 30.01.2021
Petitioner 07.12.1987 30.09.2019 30.09.2024
2. W.P.(S) Petitioner 16.08.1986 31.01.2014 31.01.2019
No. 489 No.1
of 2021 Petitioner 08.06.1986 31.07.2015 31.07.2020
3. W.P.(S) 02.02.1977 31.08. 2012 31.08.2017
No. 507 Petitioner
of 2021
These petitioners have come to the State of
Jharkhand after final allocation of their cadre in the
anticipation that there cannot be any alteration in their
service conditions amongst the Doctors, who remained in
the existing State of Bihar, as contained in section 73 of
the Bihar Re-Organization Act, 2000.
The 6th Central Pay Commissions Report has
been adopted by the State of Jharkhand on 15.09.2008
and the Ayurvedic Doctors have been given at par
treatment with the Allopathic Doctors. Hence, it has been
contended by the petitioners that in view of the fact that
by virtue of circular issued by State of Jharkhand dated
23.07.2011, the age of superannuation has been
enhanced from 60 to 65 years with respect to Allopathic
Doctors under the Jharkhand Health Services; the
Ayurvedic Doctors like the petitioners have also become
eligible to be given enhancement in the age of
superannuation from 60 to 65 years; however, after a
lapse of almost ten years; such decision has been taken
by the respondent- State of Jharkhand; that too, by
giving its effect prospectively; and thus directly affecting
these petitioners.
4. The State of Jharkhand vide notification dated
15.09.2008 had decided to accord equal status to the
Allopath Doctors and Ayurvedic Medical Officers.
However, the respondents took a decision to enhance the
retirement age of only Allopathic Doctors and not
touched the Ayurvedic Medical Officers. Further fact
reveals that during the pendency of these writ
applications, the petitioners have come to know that the
government have come up with resolution dated
08.01.2021; whereby the age of Ayush Doctors have been
enhanced but the said resolution has been given effect to
prospectively.
It has been contended that this needs to be
corrected. The petitioners are effective parties for the
reason that they have already retired. But, as far as their
consideration under the resolution dated 08.01.2021 is
concerned; the enhancement as per the judgement of this
court has been allowed in view of the fact that the
Central Government has already undertaken this
exercise and the State of Jharkhand has undertaken to
implement the Central Service Conditions. This also
includes age enhancement w.e.f. 28.02.2009.
5. Learned counsel for the petitioners submits
that in the State of Bihar, recommendation of 6th Central
Pay Commission has already been adopted vide
notification dated 30.07.2015 by the Finance
Department, by the virtue of which the Ayurvedic Doctors
have already been given at par treatment with the
Allopathic doctors; whereby they have been given the
benefit of enhancement in the age of superannuation
from 60 to 65 years but, in a highly arbitrary and illegal
manner, the service condition of the petitioners, who
came to the State of Jharkhand, has greatly been altered
by not giving them the benefit of enhancement in age
from 60 to 65 years, which is contrary to the statutory
provision as contained in Section 73 of the Bihar Re-
organization Act, 2000. In support of his contention, he
has cited the case of Jyotish Chandra Singh & others
v. State of Jharkhand which has been decided by this
Court in W.P.(S) No. 4071 of 2017, wherein this Court has
held at para-8 that the doctors of two services, i.e.
Allopathic and Ayush; are to be treated at par in all
respects.
6. Learned counsel further submits that similar
matter has already been decided by this Court in W.P.(S)
No. 342 of 2014 in the case of Dr. Girish Chandra
Prashad and Another v. State of Jharkhand; whereby
the petitioner therein belonging to the same department
and holding to the same post had preferred writ petition
for enhancement of age from 60 to 65 years. The matter
was duly considered by this Court and direction has been
issued upon the respondents to pass appropriate order
for age enhancement in accordance with law.
Learned counsel contended that even the
Patna High Court has held that the benefits of retirement
age enhancement have been granted to Allopathic
Medical Officer, and on this basis if the same benefit is
not granted to indigenous doctors, it would result in
violation of Article 14 & 16 of Constitution of India.
He further submits that the Government of
India has already approved the age enhancement of
Central Health Service Doctors to 65 years, and in that
respect since the State of Jharkhand has already
resolved to adopt Central Service conditions, the case of
enhancement of the age of the present petitioners should
also be considered.
7. It has been submitted that during the
pendency of the present writ petition the government
came up with resolution dated 08.01.2021, whereby the
age of Ayush Doctors has been enhanced; however, the
resolution has been given effect to prospectively and this
needs to be corrected pursuant to the resolution dated
28.02.2009 adopted by State of Jharkhand; whereby the
service condition prescribed by the Central Government,
wherein the Ayurvedic Medical Officers' retirement age
has already been declared as to be 65 years, will be
applicable on the counterpart State employees.
The cut-off date that has been fixed as
08.01.2021, i.e. the date of issuance of resolution,
excludes the petitioners from getting the benefit of
enhancement of age of retirement of 60-65 years as they
have already retired prior to 2021. The Ayush Doctors
should also be granted the benefit of age of enhancement,
w.e.f. the year 2011 when the Allopathic Doctors have
been granted the same. Therefore, there should be
retrospective application of the resolution dated
08.01.2021.
8. He lastly contends that the petitioners have
been put to disadvantageous position by forcing them to
retire at the age of 60 years, which is alteration in the
service conditions of the petitioners, which is contrary to
section 73 of Bihar Re-organization Act, 2000 and thus,
the action of the respondent authorities is otherwise
highly arbitrary and illegal and violates the fundamental
rights of the petitioners as guaranteed under Article 14 of
Constitution of India.
9. Learned counsel for the respondents submits
that the enhancement in the age of retirement of the
Medical Officer of Dental and Medical Education cadre
from 60 to 65 years have made effective from the date of
issuance of the Resolution. Likewise, the enhancement at
the age of retirement of the Allopathic Medical Officers in
the State Services from 60 to 65 years has also been
decided to be made effective from the date of issuance of
resolution and has not been made applicable
retrospectively.
Similarly, vide Resolution No. 05(20) dated
08.01.2021, the retirement age of Ayush doctors has
been enhanced from 60 to 65 years and has been made
effective from the date of issuance of the Resolution.
Further, the relief as sought for in the main writ petitions
stands redressed/allowed in terms of the Resolution date
08.01.2021. The relief sought for by way of I.A No. 427 of
2021 for quashing of the portion of the resolution dated
08.01.2021, to the effect that the resolution be given
effect to retrospectively from 28.02.2009 may be rejected.
It has been further submitted that these
petitioners are not entitled for said relief as it is the policy
decision and making the resolution retrospective would
entail unnecessary financial burden on State's
exchequer. As such, these writ petitions have got no
merit and same deserves to be dismissed.
10. Having heard learned counsel for the parties
and after going through the documents available on
record and the averments made in the respective
affidavits, the question that arises for consideration in
the present writ petitions is; whether the resolution dated
08.01.2021 be given effect to retrospectively from
23.07.2011 as sought for by the petitioners by way of I.A
No. 427 of 2021?
11. It appears from record that the State of
Jharkhand has adopted by its resolution dated
28.02.2009, that the service condition prescribed by the
Central Government will be applicable on the counterpart
State employees. By this rationality, the age of the
Ayurvedic Medical Officers should have been enhanced to
65 years, in accordance with the Central Government
decision, wherein the age of retirement of Ayurvedic
Medical Officers has already been declared to be 65 years
[Refer the extract of the resolution dated 28.02.2009,
Annexure 6 (Series)].
In spite of the above-mentioned resolution
dated 28.02.2009, the benefit of the same had not been
accorded to the Ayurvedic Medical Officers and their
retirement age had not been enhanced to 65 years, till
the resolution dated 08.01. 2021.
12. It further transpires that the 6th Central Pay
Commission's report had been adopted by the State of
Jharkhand on 15.09.2008; by way of which the
Ayurvedic Doctors have been given at par treatment with
the Allopathic Doctors and by issuance of the circular on
23.07.2011, the Allopathic Doctors have been given the
benefit of enhancement in the age of superannuation
from 60 to 65 years by making necessary modifications
in Rule 73 of the Jharkhand Service Code. However, in
contempt of the said report, the age of superannuation of
Ayurvedic Doctors had not been enhanced from 60 to 65
years till 2021.
13. Thus, it can safely be easily inferred that they
have suffered unequal treatment on account of the same
as the petitioners were also eligible to be given
enhancement in the age of superannuation with respect
to the circular dated 23.07.2011 but in spite of lapse of
more than 10 years i.e. till 08.01.2021, no decision in
respect of the same was taken by the respondent
authorities in spite of repeated representations having
been made by the petitioners. This has deprived the
petitioners from the benefits arising out of the increase in
age of superannuation for a long period of time for the
reason that they were forced to retire at an early age of
60 years thus, robbing them of the retirement benefits
which they would have otherwise acquired had their age
of superannuation been increased to 65 years.
14. It is also evident from record that the
petitioners have come to the State of Jharkhand after
allocation of their cadre in anticipation that there cannot
be any discrimination in the service conditions of the
Ayurvedic Doctors with that of the Ayurvedic doctors who
remained in the State of Bihar but in the highly arbitrary
and illegal manner, the service condition of the
petitioners have been altered by not giving them the
benefit of enhancement in age from 60 to 65 years, while
the doctors who are in the existing State of Bihar have
already been given the said benefit which thereby is
contrary to the statutory provision as contained in
section 73 of the Bihar Re-organization Act, 2000.
15. These facts clearly indicates that there has
indeed been alteration in the service conditions of the
Ayurvedic Doctors after their allocation in the State of
Jharkhand from the State of Bihar, as their age of
superannuation has not been increased from 60 to 65
years till 08.01.2021; which is discriminatory and
arbitrary on their part, thereby, violating the
fundamental principles and essence of Article 14
enshrined in the Constitution of India.
16. Similar issue was raised in the case of Dr.
Girish Chandra Prasad (supra), whereby the petitioner
therein belonging to the same department and holding
the same post had preferred writ petition for
enhancement of age for 60 to 65 years. The matter was
duly considered by this Court and direction has been
issued upon the respondents to consider the case and
pass appropriate order for age enhancement in
accordance with law.
17. In yet another case, i.e. the case of Jyotish
Chandra Singh & others (supra), this Court has held
that the government itself had issued a notification dated
15.09.2016, whereby decision has been taken by the
State of Jharkhand that the two cadres, i.e. Allopath and
Ayush health services have been accorded the equal
status and as such, now the plea taken by the
respondents that the age of superannuation of the Ayush
Doctors cannot be enhanced from 60 to 65 years; is not
justified.
18. In furtherance of these judgments, the
respondents have published one resolution dated
08.01.2021, whereby, it was notified in the para-4 of
resolution, that the respondents are in agreement of the
judgment that the doctors of the two services are to be
treated at par and thus, the Ayush Doctors will have the
age of retirement as 65 years, but as the petitioners
content, its applicability has been limited from the date of
issuance of the resolution, i.e. 08.01.2021 and this has
been put to challenge in I.A No. 427 of 2021.
19. This court is of the opinion that the petitioners
are right in contending that the age of superannuation
from 60 to 65 years via resolution dated 08.01.2021,
should be given effect to retrospectively from 23.07.2011;
whereby and where under the Allopathic Doctors have
been given the benefit of enhancement in the age of
superannuation from 60 to 65 years. Denying them the
benefits of increase in the age of superannuation from 60
to 65 years, for such prolonged years had violated their
fundamental rights guaranteed under Article 14 of the
Constitution of India as they have suffered unequal
treatment and heavy loss due to non-increment in the
age of their retirement. They have been forced to retire at
the age of 60 years while the Central Health Services
Doctors and Allopathic Doctors were enjoying the
benefits of the increased retirement age which is highly
discriminatory, unfair, unequal, unreasonable and
against the principles of Natural Justice.
20. In this regard reference may be made in the
case of North Delhi Municipal Corporation v. Dr. Ram
Naresh Sharma & others, reported in (2021) 17 SCC
642, wherein it has been held in para-22 & 23 as under:
"The common contention of the appellants before us is that
classification of AYUSIH 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 31-5-2016."
"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 31-5-
2016 to all the respondent doctors concerned, in the present
appeals. All consequences must follow from this conclusion."
In light of the aforesaid judgement of the
Hon'ble Apex Court; whereby it has upheld the judgment
of the Delhi High Court that the classification being made
between the Allopathic and Ayush Doctors, is
discriminatory and unreasonable since doctors under
both the segments perform the same function of treating
and healing their patients.
21. Thus, the differential treatment that had been
accorded to the Ayurvedic Doctors in the present case for
such a long duration, i.e. from 2011 to 2021, is highly
arbitrary and discriminatory as it has deprived them the
benefits of increased age of retirement. There is no proper
justification, in the eyes of law, provided by the
respondent authorities so as to support their case as to
why the Ayurvedic Doctors have not been granted the
benefits of age enhancement for such a long period of
time despite of various circulars and resolutions of the
Central Government and of the State of Jharkhand itself,
having notified that, both Allopathic and Ayurvedic
Doctors should be treated at par.
22. Bearing in mind these facts, judgements cited,
submissions made and contentions raised, it is apparent
on the face of it that the respondent authorities have
acted in an illegal and arbitrary manner due to which the
petitioners have suffered heavy loss of retirement
benefits. And even when they passed the resolution on
08.01.2021 enhancing the retirement age; these
petitioners have already retired prior to 2021. Hence, the
petitioners could not claim the benefits as the resolution
was given effect to prospectively. This has indeed not
served the purpose of justice and equity and has gravely
violated their fundamental right to equality under Article
14 of the Constitution of India.
23. Having regard to the aforesaid discussions, it
is held that the resolution dated 08.01.2021, should be
given effect to retrospectively from the date the Allopathic
Doctors were given the benefit of enhancement of age
from 60 to 65 years; which will give the petitioners their
due right to claim the benefits of increased age of
superannuation from 60 to 65 years and undo the
injustice that has been done to them for so long.
24. Accordingly, these writ petitions stand allowed
and the respondent authorities are directed to consider
the claims of the petitioners and do the needful in
accordance with law. Necessary consequential benefits be
extended to them as early as possible, preferably within a
period of four months from the date of receipt/production
of copy of this order. Pending I. As, if any, is also closed.
(Deepak Roshan, J.)
Fahim/-
AFR/
Jhjarkhand High Court, Ranchi
Dated: 24/09/2024.
