Dr. Ramesh Chand Sharma Son Of Shri ... vs State Of Rajasthan
2022 Latest Caselaw 7486 Raj/2

          HIGH COURT OF JUDICATURE FOR RAJASTHAN
                      BENCH AT JAIPUR

                    D.B. Civil Writ Petition No. 16762/2022

Dr. Ramesh Chand Sharma Son Of Shri Ramswaroop Sharma, Aged
About 60 Years, Resident Of Plot No - 184, Vinayak Enclave,
Jagatpura, Jaipur, Rajasthan.

                                                                         ----Petitioner

                                        Versus

1.      State Of Rajasthan, Through Its Additional Chief Secretary,
        Department Of Finance (Rules Division), Government Of
        Rajasthan, Government Secretariat, Jaipur

2.      The Principal Secretary, Department Of Personnel, Government
        Of Rajasthan, Government Secretariat, Jaipur.

3.      The    Principal    Secretary,       Ayurved,       And     Bhartiya   Chikitsa
        Vibhag, Government Of Rajasthan, Government Secretariat,
        Jaipur.

4.      Dy.    Secretary,         Ayurved    And      Bhartiya      Chikitsa   Vibhag,
        Government Of Rajasthan, Government Secretariat, Jaipur.

5.      Director, Ayurved And Bhartiya Chikitsa Vibhag, Government
        Of Rajasthan, Ajmer.

                                                                     ----Respondents

For Petitioner(s) : Mr. Nitesh Kumar Garg, Advocate For Respondent(s) : Mr. C.L. Saini, AAG with Ms. Srijana Shresth, Advocate

HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE VINOD KUMAR BHARWANI

Judgment / Order

25/11/2022

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

enters appearance on behalf of the State.

Heard.

Though learned counsel for the State prays for time to file reply to

oppose the reliefs sought in the writ petition, in view of our order dated

29.09.2022 in the case of Dr. Sunita Sharma D/o Shri Vijay Chand

(2 of 4) [CW-16762/2022]

Sharma Versus State of Rajasthan & Ors. passed in D.B. Civil Writ

Petition No. 14091/2022 and number of similar cases, disposed off

earlier by this Court, we are not inclined to grant time to State, but to

finally decide this petition also on similar terms.

Following reliefs have been sought:-

"It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to call for the entire record relating to this case and after perusing the same may be pleased to accept and allow this writ petition, and;

i) By issuing an appropriate writ, order or direction, the impugned notification dated 31.03.2016 and 30.03.2018 by which the benefit of the enhancement of age of superannuation has been extended only to the Doctors of Medical & Health Service and not to the Doctors of Ayurved and Bhartiya Chikitsa Vibhag of Government of Rajasthan, be declared as ULTRA-VIRES and the same may kindly be strike down to the extent it deprives the Doctors of Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service from getting the benefit of enhanced age of retirement up to 62 years and further it may be held that the petitioner who is a Doctor of Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Service is also entitled to continue in service till attaining the age of 62 years, with all consequential benefits.

ii) By issuing an appropriate writ, order or direction, the impugned order dated 08.03.2022 by which it has been ordered to superannuate the petitioner on attaining the age of 60 years i.e., on 30.11.2022 be quashed and set aside and respondents be directed not to superannuate the petitioner on attaining the age of 60 years and allow him to continue in service till attaining the age of 62 years with all consequential benefits.

iii) 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 petitioner.

iv) Cost of the writ petition may also kindly be awarded in favour of the petitioner."

The issue raised in this petition is squarely covered by order dated

13.07.2022 passed by this Court in case of Dr. Mahesh Chandra

(3 of 4) [CW-16762/2022]

Sharma & Ors. Versus State of Rajasthan & Ors. (D.B. Civil Writ

Petition No. 13496/2021 and batch of petitions). In that case, this

Court has held that no discrimination can be allowed in the matter of

age of superannuation as between Allopathic Doctors and Ayurvedic

Doctors.

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 as 2021 SCC Online SC 540 and connected

appeals, this Court has held 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 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

(4 of 4) [CW-16762/2022]

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.

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.

While some of the petitioners are still working, some of the petitioners have 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. All those petitioners, who have so retired after 31.03.2016, shall be deemed to have continued in service upto 62 years. This will require the respondents authority to pass necessary orders treating them in service till attaining the age of 62 years in individual cases with consequential benefits of continuity of service. All other consequential action would also be required to be taken which include refixation of pension and other benefits. Those, who have been superannuated on attaining the age of 60 years, but have not completed 62 years of age, be reinstated in service forthwith."

In view of the above, this petition also deserves to be allowed and

accordingly the petition is allowed in terms of the order dated

13.07.2022 passed in the case of Dr. Mahesh Chandra Sharma &

Ors. (supra). As petitioner has not even attained the age of 60 years,

the consequence of the allowing of the petition would be that the

petitioner shall be continued in service till he attains the age of 62

years.

(VINOD KUMAR BHARWANI),J (MANINDRA MOHAN SHRIVASTAVA),J

Mohita /139

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