Rajasthan High Court
Dr. Shiv Charan Sharma Son Of Shri ... vs State Of Rajasthan on 26 August, 2022
Bench: Manindra Mohan Shrivastava, Vinod Kumar Bharwani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No. 12461/2022
1. Dr. Shiv Charan Sharma Son Of Shri Prabhati Lal Sharma,
Aged About 64 Years, Resident Of 40A Patel Nagar Manna
Ka Road Alwar, District, Alwar (Raj.)
2. Dr. Brij Nandan Mishra Son Of Shri Narain Bihari Mishra,
Aged About 64 Years, Resident 3/59 Kala Kua Housing
Board Aravali Vihar, Alwar, District, Alwar (Raj.)
3. Dr. Giriraj Prasad Sharma Son Of Shri Prabhu Dayal
Mishra, Aged About 64 Years, Resident Of 141 Near
National Girls College Vijay Nagar Alwar.
----Petitioners
Versus
1. State Of Rajasthan, Through The Principal Secretary,
Department Of Personnel, Government Secretariat, Jaipur
(Raj.)
2. The Principal Secretary, Ayurved Department,
Government Secretariat, Jaipur
3. The Director, Directorate Of Ayurveda, Ajmer
----Respondents
For Petitioner(s) : Mr. Ram Kishan Sharma
For Respondent(s) : Mr. C.L. Saini, AAG with
Ms. Srijana Shresth
HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI
Order
26/08/2022
Mr. C. L. Saini, Additional Advocate General, on advance
copy, enters appearance on behalf of the State.
Heard.
Following reliefs have been sought:-
"(1) The impugned notification dated
31.03.2016 by which the benefit of the
extension of age of superannuation has been
extended only to the doctors who are using
(2 of 4) [CW-12461/2022]
Allopathic Medicine for treatment and not
extending this benefit to the doctors who are
treating by using Ayurveda may be held to be
declared as ultra vires of the Constitution of
India and accordingly the respondents may be
directed to extend this benefit to the members
of Rajasthan Ayurvedic, Unani, Homeopathy
and Naturopathy Service Rules, 1973 and
Ayurveda Chikitsak may also be held to be
entitled for their superannuation till 62 years
like Allopathic Doctors accordingly, the order
dated 04.10.2017 depicting the date of
superannuation of the humble petitioners may
also be quashed and set aside and the humble
petitioners may be entitled to be
superannuated only on completion of age of 62
years, in the interest of justice.
(2) Any other relief which this Hon'ble Court
may deem fit and proper in the facts and
circumstances of the case, may also kindly be
passed in favour of the petitioners."
This Court in the case of Dr. Mahesh Chandra Sharma &
Ors. Versus State of Rajasthan & Ors. (D.B. Civil Writ
Petition No.13496/2021 and batch of petitions) has dealt
with the issue as to whether providing different age of
superannuation for Allopathic Doctors vis-a-vis Ayurvedic doctors
is discriminatory and violative of Article 14 of the Constitution of
India and relying upon the decision of the Hon'ble Supreme Court
in the case of North Delhi Municipal Corporation Vs. Dr. Ram
Naresh Sharma & Ors. reported in 2021 SCC ONLINE SC 540
and other judicial pronouncements, it has been held as below:-
"It is not necessary for us to dwelve deep
in the matter because this issue is no longer res
integra and stands concluded by the decision of
the Hon'ble Supreme Court in the case of North
Delhi Municipal Corporation Vs. Dr. Ram Naresh
Sharma & Ors (supra) and batch of cases where
this issue was examined. While enhancing the
age of retirement of Allopathic Doctors from 60
to 62 years, this enhancement had not taken
place in respect of the class of Ayurvedic Doctors
which resulted in filing of petitions before the
Tribunal. The Tribunal held the classification
unreasonable and the petitions were allowed.
(3 of 4) [CW-12461/2022]
The matter was taken to the Hon'ble Supreme
Court by the employer namely North Delhi
Municipal Corporation. Their Lordships in the
Hon'ble Supreme Court held as below:-
"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. 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 31.05.2016. 23. 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. 14019/4/2016EI
(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."
The aforesaid authoritative
pronouncement of Hon'ble Supreme Court
leaves no scope for arguments on the part
of the respondents to defend their action of
discrimination in the matter of fixing age of
superannuation of Ayurvedic Doctors and it
has to be consequently held that they are
also entitled to continue in service till
(4 of 4) [CW-12461/2022]
completion of age of 62 years, which is
applicable in the case of Allopathic Doctors.
It is brought to our notice and also
placed on record that the age of
superannuation of Allopathic Doctors was
enhanced from 60 to 62 years w.e.f.
31.03.2016."
The submission of Learned Additional Advocate General that
the relief could not been granted as judgment of the Supreme
Court applied prospectively, has already been dealt by us in the
case of Dr. Mahesh Chandra Sharma & Ors. (supra).
We place on record the fact regarding petitioners having
already retired after attaining the age of 60 years after the
issuance of notification enhancing age of retirement from 60 to 62
years in respect of Allopathic Doctors. As the petitioners have
retired after 31.03.2016, the petitioners are also entitled to the
same relief which has been granted by us in the aforesaid case.
However, the petitioners shall be deemed to have continued in
service till attaining the age of 62 years. This will require the
respondent-authority to pass necessary orders treating the
petitioners to be in service till attaining the age of 62 years with
all consequential benefits of continuity of service. We also make it
clear that all other consequential action will also be required to be
taken which include appropriate orders with regard to the
pensionary benefits which the petitioners have already availed.
Consequential orders in this regard shall also be required to be
passed by the respondents.
The petition is accordingly allowed.
(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ
SAHIL SONI /08
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