Rajasthan High Court - Jodhpur

Devkrishan Saraswat vs State Of Rajasthan (2024:Rj-Jd:42778) on 19 October, 2024

Author: Farjand Ali

Bench: Farjand Ali

[2024:RJ-JD:42778]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Civil Writ Petition No. 17556/2024

Devkrishan Saraswat S/o Kashi Ram Saraswat, Aged About 60
Years, Bheru Dan Bangalo Ke Pass, Rani Bazar, Bikaner,
Rajasthan.
                                                                          ----Petitioner
                                       Versus
1.       State Of Rajasthan, Through Its Secretary, Department Of
         Ayurved And Indian Medicines, Government Of Rajasthan,
         Secretariat, Jaipur.
2.       The Secretary, Department Of Personnel, Government Of
         Rajasthan, Jaipur.
3.       Deputy       Secretary,       Ayurved,        Yoga         And   Naturopathy
         Medicine,      Unani,      Siddha        And      Homeopathy          (Ayush)
         Department, Secretariat, Jaipur.
4.       The Director, Ayurved Department, Ashok Marg, Lohagal
         Road, Savitri College Circle, Ajmer.
5.       Additional Director, Ayurved Department, Bikaner.
6.       Deputy Director, Ayurved Department, Bikaner.
                                                                     ----Respondents


For Petitioner(s)            :     Mr. Abhimanyu Singh
                                   Mr. Sher Singh
For Respondent(s)            :     Mr. S.S. Rajpurohit



                HON'BLE MR. JUSTICE FARJAND ALI

Order

19/10/2024

1. The petitioner was appointed as Ayurved Chiktaaks under

Rajasthan Ayurvedic, Unani, Homeopathy & Naturopathy

Service Rules 1973 vide appointment order dated

19.01.1991 and presently posted at Senior Medical Officer

Grade-2 at Bikaner in the respondent department, has

preferred the instant Writ Petition under Article 226 of the

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Constitution of India seeking a direction for the respondents

to allow him to continue in service till attaining the age of 62

years with all consequential benefits. The date of birth of the

petitioner is 15.10.1964 and the respondents would be going

to retire him from service on 30.10.2024 upon attaining the

age of 60 years.

2. The facts relevant for disposal of the instant writ petition are

that the Government of Rajasthan issued a Notification dated

31.03.2016 whereby the age of superannuation for the

Allopathic Doctors working under the Government of

Rajasthan was enhanced to 62 years than to 60 years. Some

Ayurvedic doctors preferred a batch of writ petitions led by

DBCWP No.13496/2021 (Dr. Mahesh Chandra Sharma

& Ors. Vs. State of Rajathan & Ors.) decided on

13.07.2022 wherein it was held that there cannot be any

discrimination in the age of superannuation between the

Allopathic Doctors and the Ayurvedic Doctors. The said writ

petition was decided by relying upon the decision rendered

by Hon'ble the Supreme Court in the case of North Delhi

Municipal Corporation Vs. Dr. Ram Naresh Sharma &

Ors and batch of cases wherein it has been held as

under:-

"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

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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 justification is seen for having different

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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."

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3. The respondent State of Rajasthan challenged the aforesaid

judgment by way of filing SLP No.14308-14318/2022 before

Hon'ble the Supreme Court, which came to be dismissed

vide judgment dated 30.01.2024 whereby the judgment

passed by the Division Bench was affirmed and it was held

as under:-

"The arguments advanced by the learned counsel and the reasoning given by this Court in Dr. Ram Naresh Sharma (Supra) are carefully considered. No infirmity is found with the impugned judgment dated 13.07.2022 whereafter parity relief on retirement age was granted to the Ayush doctors. The Special Leave Petitions are accordingly dismissed."

4. After dismissal of the SLP, the State Government preferred a

review petition before Hon'ble the Apex Court seeking review

of the order dated 30.01.2024 which has also been

dismissed vide order dated 15.10.2024. Even after dismissal

of the SLP, the respondents continued to retire Ayurvedic

Doctors upon attaining the age of 60 years on the ground of

pendency of review petition. Being aggrieved of the said

action of the respondents, a batch of writ petitions came to

be preferred by the Ayurvedic Doctors led by DBCWP

No.2949/2024 (Dr. Mahendra Singh Jakhar & Ors. Vs. State

of Rajasthan & Ors.), which came to be allowed by a Division

Bench of this Court vide order dated 28.02.2024. Relevant

paras of the said order have been reproduced as under:-

"4. After taking into consideration the submissions of learned counsel for the parties, we are of the view that insofar as the present petitions are concerned, the

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petitioners herein are identically situated as Dr. Mahesh Chand Sharma and others in whose favour earlier an order was passed by this Court and against which SLP has now been dismissed by the Hon'ble Supreme Court vide order dated 30.01.2024.

5. May be that the State is contemplating to file review petition, however, that could not be a ground for this Court not to pass similar orders in the present cases also because the petitioners in this batch of petitions are identically situated as Dr. Mahesh Chand Sharma and others. Therefore, in that view of the matter, we are inclined to allow all these petitions. 5. It has been brought to our notice and also placed on record that the age of superannuation of Allopathic Doctors was enhanced from 60 to 62 years with effect from 31.03.2016.

6. While the petitioners in D.B. Civil Writ Petition Nos. 2949/2024, 3042/2024 & 2279/2024 are continuing in service, petitioner in connected D.B. Civil Writ Petition No. 2732/2024 has attained the age of superannuation. As the retirement of petitioner in D.B. Civil Writ Petition No. 2732/2024 has taken place after 31.03.2016, he shall be deemed to continue in service upto the age of 62 years. The petitioners in other writ petitions shall also continue in service upto 62 years.

7. The respondents are required to pass necessary orders in compliance of the order passed by this Court. Those who have been superannuated on attaining the age of 60 years, but have not completed the age of 62 years, be reinstated in service forthwith."

5. The controversy raised in the instant Writ Petition is squarely

covered within four corners of the orders passed by Hon'ble

the Apex Court as well as the Division Bench of this Court.

6. Accordingly, the instant writ petition deserves to be and is

hereby allowed in terms of the order dated 13.07.2022

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

(Supra) and Dr. Mahendra Singh Jakhar & Ors. (Supra).

The petitioner shall be continued in service till he attains the

age of 62 years and further order showing him to retire at

the age of 60 years shall not be passed by the department.

7. Stay petition stands disposed of.