Dr. Goda Charan Srivastva Son Of ... vs State Of Rajasthan
2022 Latest Caselaw 5907 Raj/2

             HIGH COURT OF JUDICATURE FOR RAJASTHAN
                         BENCH AT JAIPUR

                     D.B. Civil Writ Petition No. 12447/2022
       1.     Dr. Goda Charan Srivastva Son Of Shri Anand Krishan
              Srivastva, Aged About 61 Years, Resident Of D-55-A
              Nirman Nagar Ajmer Road Jaipur , District , Jaipur (Raj.)
       2.     Dr. Suresh Chand Sharma Son Of Shri Shibu Ram
              Sharma, Aged About 61 Years, Resident Of 10 N E B
              Housing Board Ke Pas Onkar Colony Alwar , District ,
              Alwar (Raj.)
                                                                         ----Petitioners
                                          Versus
       1.     State Of Rajasthan, Through The Principal Secretary,
              Department Of Personnel, Government Secretariat, Jaipur
              (Raj.)
       2.     State Of Rajasthan, Through The Principal Secretary,
              Department Of Finance, Government Secretariat, Jaipur
              (Raj.)
       3.     The   Principal  Secretary,                  Ayurved        Department,
              Government Secretariat, Jaipur
       4.     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

Heard.

Mr. C. L. Saini, Additional Advocate General, on advance

copy, enters appearance on behalf of the State.

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 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

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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 29.07.2020 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 and also be given monetary service benefits.

(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.

The matter was taken to the Hon'ble Supreme Court by the employer namely North Delhi

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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 completion of age of 62 years, which is applicable in the case of Allopathic Doctors.

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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. As

the petitioners have not completed 62 years of age, they shall be

reinstated forthwith and continue in service upto 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 /06

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