Madhya Pradesh High Court
Smt.Pushpa Dubey vs The State Of Madhya Pradesh on 7 October, 2021
Author: Sujoy Paul
1 WP No.19104/20 & WP No.3365/14
The High Court of Madhya Pradesh:
Bench at Indore
Case Number W.P.No. 19104/2020
Parties Name Smt. Shashibala Chauhan
W/o Mr. Anand Chauhan
Vs.
State of M.P. & Ors.
Case Number W.P.No. 3365/2014
Parties Name Smt. Pushpa Dubey W/o Shri Dinesh Dubey
Vs.
State of M.P. & Ors.
Date of Order 07/10/21
Bench Division Bench:
Justice Sujoy Paul
Justice Anil Verma
Judgment delivered Justice Sujoy Paul
by
Whether approved for YES
reporting
Name of counsel for Shri Sumeet Samvatsar, learned counsel for the
parties petitioner in WP No.19104/2020.
Shri VK Patwari, learned counsel for the
petitioner in WP No.3365/2014.
Shri Pushyamitra Bhargava, learned Additional
Advocate General for the respondents/State.
Law Laid Down *Sub-Rule (1-e), (1-j) of Madhya Pradesh
Shaskiya Sevak (Adhivarshiki-Ayu)
Sanshodhan Adhiniyam, 2011 / Fundamental
Rules - Constitutionality of - By impugned
provisions, the Govt. raised the age of
superannuation of every govt. nurse from 62 to
65 years but deprived the staff nurses working
in Ayush Department. The Court held that there
is no intelligible differentia or reasonable
classification to deprive the left out group of
staff nurse of Ayush Department. Keeping in
view their interchangeability, same nature of
duties and same age of superannuation before
issuance of Impugned Adhiniyam offending
provisions are declared as ultra vires.
*Constitution of India - Article 14 of the
Constitution - Article 14 permits reasonable
classification for the purpose of legislation.
2 WP No.19104/20 & WP No.3365/14
However, it forbids class legislation or a
legislation which divides a homogeneous class
and creates a class within the class. In absence
of any intelligible differentia and objects
sought to be achieved in depriving the nurses
of Ayush Department, the impugned provisions
are held to be ultra vires.
*Arrears of salary and Consequential
Benefits - The petitioners were all along
willing to perform their duties till attaining the
age of 65 years like their counter parts of other
department but were deprived to do so for the
reasons solely attributable to the Department.
They are entitled to continue up to 65 years of
age with all consequential benefits.
*Discrimination - The staff nurses working in
Ayush Department were transferred on several
occasions to Allopathic Hospitals and they
performed their duties there even as a Covid
Front-line Worker. The age of retirement of
both the sets of nurses working in the govt.
hospitals was 62 years which was disturbed by
issuance of impugned notification whereby
except nurses of Ayush Department, the age of
superannuation of other nurses was raised.
There was no change in nature of duties and
responsibilities of govt. nurses in the
meantime. Hence, the action was held to be
discriminatory in nature.
Significant Paragraph 19-30
Numbers
ORDER
(Passed on 07th October, 2021)
Regard being had to the similitude of the questions involved, on
the joint request of the parties, the matters were analogously heard and
decided by this common order.
WP No.19104/2020:-
2) The petitioner, a Staff Nurse, has challenged the
constitutionality of explanations Fundamental Rule 56 to proviso to
Sub-Rule (1-e), (1-j) of Madhya Pradesh Shaskiya Sevak
(Adhivarshiki-Ayu) Sanshodhan Adhiniyam, 2011 (Impugned
Adhiniyam), whereby Fundamental Rules are amended and while
extending the age of superannuation of every government nurse,
explanations are appended which deprives the petitioner, a Staff Nurse
working in the Ayush Department of the government.
3) Briefly stated, the relevant facts are that the petitioner
underwent a mandatory 18 months training in nursing men, women
and children and in Midwifery and in Community Health Nursing in
a recognized institute and was declared qualified to practice vide
certificate dated 10.11.1983.
4) The Competent Authority by order dated 03rd February 1999
appointed the petitioner as Staff Nurse at Govt. Ayurvedic College,
Gwalior. The petitioner was transferred by order dated 31.05.2000
(Annexure P/4) to Mahatma Gandhi Hospital, Dewas which is an
allopathic hospital. This fact is pleaded by petitioner to demonstrate
that as and when it was required, the petitioner's services were taken
as Staff Nurse in Ayurvedic as well as in Allopathic Hospitals. The
petitioner is professionally and educationally competent to discharge
her duties as Staff Nurse in both the kinds of hospitals.
5) The Govt. of Madhya Pradesh promulgated Impugned
Adhiniyam vide Gazette Notification dated 06.05.2011 whereby
retirement age of government nurses was raised from an existing 62
years to 65 years. The Sub-Rule (1-e) and (1-j) to F.R. 56 are framed
in such a manner which deprives the petitioner to serve the
department till 65 years of age.
WP No.3365/2014:-
6) The petitioner Smt. Pushpa Dubey was appointed by order of
Joint Director, Public Health Services, Bhopal on 05.05.1977
(Annexure P/1). She was transferred on various occasions which is
evident from transfer order (Annexure P/2). The petitioner although
appointed in the Public Health Department was subsequently required
to work as a Staff nurse in Ayush department. For this reason alone,
the petitioner was not given the benefit of age of superannuation up to
65 years.
7) Shri Sumeet Samvatsar, learned counsel for the petitioner
submits that before issuance of Impugned Adhiniyam, the age of
retirement of petitioner i.e. Staff Nurses working in Ayush Department
and their counter parts working in other Govt. departments was same
i.e. 62 years. There is no change in the service conditions of the
Nurses of all the departments and, therefore, the Adhiniyam is
discriminatory and arbitrary to the extent it deprives the petitioner to
serve up to 65 years of age.
8) The petitioner was a Covid Frontline Worker during the
pandemic era and as per the Integrated Financial Management
Information System of Govt. of Madhya Pradesh, the date of
superannuation of petitioner was shown w.e.f. 31.12.2023. This
document is filed as Annexure P/8. Thus, petitioner was under an
impression that she will continue in employment till attaining the age
of 65 years.
9) Criticizing the offending provisions of Adhiniyam/F.R. 56 as
aforesaid, Shri Sumeet Samvatsar submits that there is no justification
in not extending the same benefit of age of retirement to the Staff
Nurses working in Ayush Department. The impugned Notification is
violative of Article 14 of the Constitution and is discriminatory in
nature. Reliance is placed on recent judgment of Supreme Court
passed in Civil Appeal No.4578/2021 (North Delhi Municipal
Corporation vs. Dr. Ram Naresh Sharma & Ors.). It is contended
that in the said case, the Department raised the age of superannuation
for allopathic doctors but gave a discriminatory treatment to the
AYUSH doctors. This provision of discrimination was assailed by
AYUSH doctors before the Central Administrative Tribunal (Tribunal)
which set aside the said provision and directed that AYUSH Doctors
are entitled for parity in the matter of age of superannuation with
allopathic doctors. This order of Tribunal was unsuccessfully
challenged before the High Court and the Supreme Court.
10) Shri Sumeet Samvatsar, learned counsel for the petitioner has
taken pains to contend that case of present petitioner is on a better
footing than that of Dr. Ram Naresh Sharma (supra) because as
demonstrated above, the petitioner's services were periodically taken
by the respondents in Allopathic hospitals also. This shows that the
nature of job performed by Nurse in both the hospitals is similar and
interchangeable. In this backdrop, it is not proper to give a
discriminatory treatment to the petitioner.
11) The next reliance is placed by petitioner on a Full Bench
Judgment of this Court in State of M.P. vs. Yugal Kishore Sharma
(2018(2) M.P.L.J. 450). It is submitted that as per this judgment, the
classification mentioned in the Recruitment Rule is not decisive in
nature. The Full Bench gave wide meaning to the expression 'Teacher'
and was not impressed with the contention of Department that as per
the Recruitment Rules 'Teachers' and 'Instructors' are differently
defined trained and recruited and hence Instructors can be retired on
different age.
12) Shri Pushyamitra Bhargava, learned AAG opposed the
contentions of petitioner and by placing reliance on (2020) 12 SCC
506 Ramkrishna Grover vs. Union of India and M.P. Vidyut
Karmchari (Federation) Jabalpur vs. Madhya Pradesh Electricity
Board [(2004) 9 SCC 755] urged that the fixing the age of
superannuation is within the province of the employer. It is
legislature's primary function to make laws. The employees have no
right to continue up to 65 years of age.
13) The judgment of Supreme Court in Chiranjeet Lal Choudhary
vs. Union of India (AIR 1951 SC 41) is pressed into service to
contend that if there is a classification, the Court will not held it
invalid merely because the law might have even extended to other
persons, who in some respect might resembled the class for which the
law was made for. Legislature is the best judge of the need of
particular class and scope of interference by Courts is extremely
limited.
14) To support the classification so made by the impugned
notification, it is averred in the reply that petitioner is working in
Ayush Department and is governed by the M.P. Public Health (Indian
Systems of Medicine and Homeopathy) Class-III Ministerial Services
Recruitment Rules, 1987 (1987 Rules) whereas the Staff Nurses, who
have been given the benefit of extension of superannuation age up to
65 years are governed by different set of recruitment rules namely,
The Madhya Pradesh Public Health and Family Welfare Department
(Directorate of Health Services) Class III Nursing Service
Recruitment Rules 1989 (1989 Rules). By preparing a comparative
table, it is demonstrated that Nurses recruited under the Rules of 1989
are much more qualified than the Nurses appointed under Rules of
1987. Thus, there is a well-defined classification which does not hit
Article 14 of the Constitution.
15) Parties confined their arguments to the extent indicated above.
16) We have bestowed our anxious consideration on rival
contentions and perused the record.
17) Before dealing with rival contentions, it is apposite to quote the
relevant provision of the Impugned Adhiniyam. It reads as under:-
"(1-e) (a) Subject to the provisions of sub-rule (2),
every Government nurse other than a Government
nurse mentioned in sub-rule (1-j) shall retire from service
on the afternoon of the last day of the month in which he
attains the age of sixty five years:
Provided that a Government nurse, other than a
Government nurse mentioned in sub-rule (1-j), whose
date of birth is the first of a month shall retire from
service on the afternoon of the last day of the preceding
month on attaining the age of sixty five years.
Explanation.- For the purpose of this clause a
"Government nurse" means a Government Servant
by whatever designation called, appointed to a post
mentioned under Group 'C' Nursing Services in
Schedule-1 of the Madhya Pradesh Public Health and
Family Welfare (Gazetted) Services Recruitment Rules,
2007 and under Schedule-I of the Madhya Pradesh Public
Health and Family Welfare Department (Directorate of
Health Services) Class-III Nursing Service Recruitment
Rules, 1989, for the purpose of nursing in accordance
with the recruitment rules applicable to such appointment
provided he holds a lien on a nursing post of an
institution under the Public Health and Family Welfare
Department.
(1-j) Subject to the provisions of sub-rule (2), every
Government nurse other than a Government nurse
mentioned in sub-rule (1-e) shall retire from service on
the afternoon of the last day of the month in which he
attains the age of sixty five years:
Provided that a Government nurse other than a
Government nurse mentioned in sub-rule (1-e), whose
date of birth is the first of a month shall retire from
service on the afternoon of the last day of the preceding
month on attaining the age of sixty five years.
Explanation.- For the purpose of this clause, a
"Government nurse" means a Government Servant
by whatever designation called, appointed to a post
mentioned under College of Nursing, Indore in
Schedule-1 of the Madhya Pradesh Medical Education
(Gazetted) Services Recruitment Rules, 1987 and under
Schedule-I of the Madhya Pradesh Public Health and
Family Welfare Department (Directorate of Health
Services) Class-III Nursing Service Recruitment Rules,
1989, for the purpose of nursing in accordance with the
recruitment rules applicable to such appointment,
provided he holds a lien on a nursing post of an
institution under the Medical Education
Department."
(Emphasis Supplied)
18) The comparative chart prepared by the respondents is extracted
from their reply on the strength of which classification has been
justified:-
The Madhya Pradesh Public Madhya Pradesh Public Health
Health (Indian Systems of and Family Welfare
Medicine and Homeopathy) Department (Directorate of
Class III Ministerial Services Health Services) Class III
Recruitment Rules, 1987. Nursing Service Recruitment
Rules 1989.
BSc or Registered Nurse Mid 10+2 in Physics, Chemistry
Wife holding a Certificate from Maths. BSc Graduate Nursing
Nurse Counsel and 2 years Degree/Diploma Nursing and
Experience. registration in RNRM (registered
Nurse and Registered Mid Wife)
from Madhya Pradesh Nursing
Council.
19) The constitution bench in AIR 1955 SC 191 (Budhan
Choudhry & Ors. Vs. State of Bihar dealt with scope and effect of
Article 14 of the Constitution. The litmus test laid down by the
Constitution Bench is as under:-
"While Art. 14 forbids class legislation, it does
not forbid reasonable classification for the purposes of
legislation. In order, however, to pass the test of
permissible classification two conditions must be
fulfilled, namely, (i) that the classification must be
founded on an intelligible differentia which distinguishes
persons or things that are grouped together from others
left out of the group and (ii) that differentia must have a
rational relation to the object sought to be achieved by
the statute in question. The classification may be founded
on different bases; namely, geographical, or according to
objects or occupations or the like. What is necessary is
that there must be a nexus between the basis of
classification and the object of the Act under
consideration. Art. 14 condemns discrimination not only
by a substantive law but also by a law of procedure."
(Emphasis Supplied)
The ratio decidendi of Budhan Choudhry has been consistently
followed in Hiralal P. Harsora v. Kusum Narottamdas Harsora
(2016) 10 SCC 165, Karnataka Live Band Restaurants Assn. vs.
State of Karnataka (2018) 4 SCC 372, Lok Prahari vs. State of U.P.
(2018) 6 SCC 1, CRPF vs. Janardan Singh (2018) 7 SCC 656,
Navtej Singh Johar vs. Union of India (2018) 10 SCC 1 and Rana
Nahid vs. Sahidul Haq Chisti (2020) 7 SCC 657.
20) Sub Rules 1(e) and 1(j) provides that every government nurse
other than government nurse mentioned in Sub-Rule (1-j) and (1-e)
shall retire from service on attaining the age of 65 years. The
explanation below Rule (1-e) makes it clear that although definition of
government nurse is very wide because of use of expression
'government nurse means a government servant by whatever
designation called', the broadness of this expression is sought to be
curtailed by mentioning that such government nurse must have been
appointed to a post under the Rules of 2007 or 1989. In addition, such
nurse must be holding a lien on a nursing post in an institution under
the Public Health and Family Welfare Department.
21) Similarly, explanation to Rule (1-j) provides that such nurse
must have been appointed to a post as per M.P. Medical Education
(Gazetted) Service Recruitment Rules 1987 and Rules of 1989
provided he/she holds a lien on a nursing post of an institution under
the Medical Education Department.
22) A combined reading of both the explanations appended to Rule
(1-e) and (1-j) shows that the government nurses appointed under the
Rules of 1989, 2007 and under MP Medical Education (Gazetted
Service Recruitment) Rules 1987 were given the benefit of extension
of age of superannuation. However, the petitioners appointed under
the Rules of 1987 aforesaid who did not have lien on a nursing post in
any institution under the Public Health and Family Welfare
Department or in Medical Education Department are put to a
comparative disadvantageous position in the matter of raising the age
of superannuation. The petitioners are working under Directorate
AYUSH of Govt. of M.P.
23) During the course of hearing, on a specific query from the
bench, learned counsel for both the parties fairly admitted that before
the Impugned Adhiniyam came into being, the petitioners and their
counter parts working in other departments including Medical
Education and Family Welfare Department were having same age of
retirement i.e. 62 years. It is also not pointed out by counsel for the
State that the service conditions of petitioners or their counter parts
were altered at any subsequent stage. The specific pleadings and proof
given by the petitioners that their services were utilized by
respondents in Allopathic Medical Colleges was also not denied by
the government. In this factual backdrop, the question is whether
Impugned Notification by which age of superannuation was not raised
for staff nurses of Ayush Department is ultra vires or not.
24) Article 14 permits legislation which is founded upon reasonable
classification. The twin test to pass the test of permissible
classification are that classification must be based on an intelligible
differentia which distinguishes a category from the other left out
category and such differentia has a rational nexus with the object
sought to be achieved by statute in question.
25) The stand of respondents shows that they need the services of
nurses up to the age of 65 years, therefore, age of superannuation of
every government nurse is raised, who were appointed as per the
Rules mentioned in both the above explanations and whose lien is
maintained in Public Health and Family Welfare Department and in
Medical Education Department. The staff nurse of Ayush department
is put to a comparatively disadvantageous position on the basis of
educational qualification mentioned in their Rules which it is evident
from the comparative chart reproduced hereinabove. The pivotal
question is whether difference of qualification for the purpose of
recruitment can be a basis to deprive the staff nurses of Ayush
Department. Moreso, when despite this difference of educational
qualification, prior to 06th May, 2011, their age of superannuation was
same i.e. 62 years. That difference of educational qualification at the
time of recruitment of Staff Nurses pales into insignificance because
the nature of work performed by nurses of all department is same. For
this reason, petitioners' services were utilized in allopathic hospitals
also. Thus, the educational qualification or birth mark relating thereto
in our opinion, cannot create any intelligible differentia which really
distinguishes the nurses of Ayush department with their counter parts
of other departments. There exists neither any intelligible differentia
nor any objects sought to be achieved by keeping the petitioners at the
bay and depriving them from same age of superannuation. We find
support in our view from the Full Bench judgment in the case of
Yugal Kishore (supra). One of the questions posed before the Full
Bench was as under:-
"(1) Whether the writ-petitioners who are not designated
and classified in the cadre of a 'teacher' under relevant
Recruitment Rules but, are engaged in teaching or
imparting training, can be held to be a 'teacher' for the
purpose of the age of superannuation under Fundamental
Rule 56?"
26) Pertinently, in the said case, the definition of 'teacher' was very
wide and the persons, who were 'instructors' under the Rules were
claiming that they should be treated as 'teachers' for the purpose of
age of retirement. This Court opined thus:-
"41. In view of the above, we hold that classification in
the recruitment Rules is not determinative of the fact:
whether a Government servant is a Teacher or not - as
the meaning assigned to Teacher in the State Act has to
be preferred over the classification of Teacher in the
recruitment Rules. The Amending Act has given wide
meaning to the expression "Teacher", which includes the
"Teachers irrespective of the designation and appointed
in a Government Technical and Medical institutions".
Therefore, the "Instructors" engaged for imparting
training to women in the Tailoring Center work under the
Department of Women and Child Development are
entitled to extension in age up to the age of 62 years
being teachers as mentioned in the amending Act."
(Emphasis Supplied)
27) The classification in the Recruitment Rules was held to be not
decisive in nature. Indeed, it was held that the relevant portion of the
fundamental rules is a beneficient provision and it should be read in a
manner to include instructors engaged for imparting training to
women. The Apex Court in its recent judgment in Dr. Ram Naresh
Sharma (supra) poignantly held as under:-
"22. The common contention of the appellants
before us is that classification of AYUSH 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."
(Emphasis Supplied)
28) In view of these judgments, we are of the considered opinion
that the impugned provisions of the Adhiniyam are arbitrary and
discriminatory in nature. For the reasons stated above, we are unable
to persuade ourselves that employer has any unfettered right to raise
the age of superannuation of one set of employees by leaving aside
another despite the fact that there exists no reasonable classification
which permits the employer to discriminate the left out group. No
doubt it is the prerogative of the employer to decide the age of
superannuation but while doing so, the employer cannot be permitted
to undertake said exercise in an arbitrary and discriminatory manner.
The step motherly treatment cannot be given to similarly situated
nurses of Ayush Department. Putting it differently, the employer
cannot be permitted to divide a homogenous class and create a class
within the class for no valid reasons. It cannot be disputed that nurses
working in Ayush Department and other departments/hospitals
perform similar nature of duties. Merely because the nature of
treatment in allopathic and Ayush Department are different, the staff
nurses of Ayush Department cannot be treated to be a separate class.
The classification so made by impugned notification cannot sustain
judicial scrutiny in view of litmus test laid down in Budhan
Choudhry (supra). The ratio decidendi of judgment of Dr. Ram
Naresh Sharma (supra) also does not approve such classification.
Hence it cannot be given stamp of approval by this Court.
29) The matter may be viewed from another angle. In 1991 Supp
(2) SCC 565 (The Employees of Tannery and Footwear Corporation
of India Ltd. & Anr. Vs. Union of India & Ors.), the employees of
one Corporation of Govt. of India claimed parity in the matter of pay
scale with their counter parts working in another Corporation of Govt.
of India. They claimed that the parity between both the sets of
employees working in both the departments was continuously
maintained till such time pay scale of similarly situated employees of
one Corporation was raised. We are not oblivious of the fact and legal
position and test for the purpose of applying principle of equal pay for
equal work and age of retirement are different. Yet it is noteworthy
that Apex Court opined that both the Corporations are two distinct
legal entities, but they are governed by the same Constitution. After
1970, there was no change in duties and functions of persons holding
corresponding posts in two organizations. Thus, revising pay scale in
one Corporation and depriving the employees of other will be
arbitrary and violative of directives contained in part IV of the
constitution. In the instant case also, it is not the case of the
department that service conditions/job nomenclature of staff nurses of
Ayush Department or their counter parts have undergone a change
after their appointments and, therefore, for the purpose of analogy, the
aforesaid judgments can be relied upon and it can be safely held that
staff nurses of Ayush Department are similarly situated qua the staff
nurses of other departments. There is no justification at all to deprive
the staff nurses of Ayush Department from the age of superannuation.
30) In view of foregoing analysis, we declare the said explanation
to provisio to Sub-Rule (1-e) and (1-j) of Notification dated
06.05.2011 as ultra vires and strike down the same to the extent it
deprives the nurses of Ayush Department from getting the benefit of
increased age of retirement up to 65 years. Since petitioners were all
along willing to perform their duties and were deprived to do so up to
65 years of age for the reasons solely attributable to the respondents,
the petitioners shall be continued in employment till 65 years of age.
This order will reap all consequential benefits for the petitioners as if
they were not retired at the age of 62 years.
31) This order be complied within 60 days from the date of
production of copy of this order.
The petitions are allowed.
(Sujoy Paul) (Anil Verma)
Judge Judge
soumya
Digitally signed by
SOUMYA RANJAN
DALAI
Date: 2021.10.07
16:42:03 +05'30'
