Allowed

Dr.Ajit Kumar v. State of U.P. and 2 Others

Allahabad HC11 Aug 2023WRIA/2097/2022

Case brief

AI extract

What is this about?

The Allahabad High Court allowed a writ petition filed by a Homeopathic doctor seeking to continue service until age 62. Relying on Supreme Court and High Court precedents, the court held that classifying Homeopathic doctors differently from Allopathic doctors regarding retirement age is discriminatory under Article 14.

What did the court decide?

Allowed to continue in service till the age of 62 years; granted benefits of continuity of service and consequential benefits in accordance with law.

Dr.Ajit Kumar Vs State of U.P. and 2 Others — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:164004

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Reserved on: 25.04.2023

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Delivered on: 11.08.2023

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Court No. - 65

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Case :- WRIT - A No. - 2097 of 2022

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Petitioner :- Dr.Ajit Kumar

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Respondent :- State Of U.P. And 2 Others

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Counsel for Petitioner :- Awadh Behari Singh,Dinesh Kumar Sharma

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Hon'ble Rajeev Misra,J.

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Heard Mr. A.B. Singh along with Mr. D.K. Sharma, the learned counsel for petitioner and the learned Standing Counsel representing respondents 1 to 3.

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This petition under Article 226 of the Constitution of India has been filed for the following relief:-

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i) issue writ, order or direction in the nature of mandamus commanding the respondents to enhance the age of retirement of the petitioner up to 62 years in consonance with the notification dated 31.05.2017 and provide the equal benefits to the petitioner as per Allopath doctors.

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ii) issue a writ, order or direction in the nature of mandamus commanding the respondents to allow the petitioner to work on his post up to the age of 62 years by maintaining the status quo.

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iii) issue writ, order or direction in the nature of mandamus commanding the respondents to pass an appropriate order on the representation made by the petitioner to allow to continue up to the age of 62 years with all benefits. (Annexure No.6 to the writ petition) within a fix period.

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iv) issue writ, order or direction in the nature of mandamus commanding the respondents to provide the benefit of enhancement of age of retirement from 60 years to 62 years of the Allopath doctors to the petitioner who is Senior Medical Officer in Government Homeopathic Hospital, Sonegarh, Mirzapur.

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Record shows that present writ petition came up for admission on

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25.02.2022 and this Court passed the following order :-

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"The learned Standing Counsel has accepted notice on behalf of respondents. He prays for and is granted 15 days' to file counter

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affidavit. Learned counsel for the petitioner shall have 10 days' time to file rejoinder affidavit thereafter.

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List this matter on 22nd March, 2022."

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Subsequent to above order dated 25.02.2022, the respondents have filed a counter affidavit disputing the claim of the petitioner. A rejoinder affidavit has been filed by the petitioner, wherein he has rejoined the averments made in the writ petition.

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Learned counsel for the parties agreed that since the pleadings have been exchanged between the parties, therefore, the present writ petition may be decided at the stage of admission itself. Consequently, with the consent of the counsel for the parties and in accordance with the Rules of the Court, the present writ petition is being disposed of finally at the stage of admission.

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Record shows that the petitioner Dr. Ajit Kumar was selected by the U.P. Public Service Commission for the post of Medical Officer (Homeopathic). Based upon the recommendation of the U.P. Public Service Commission, the petitioner was appointed as a Medical Officer (Homeopathic). The petitioner was, accordingly, posted as Medical Officer at Government Homeopathic Hospital, Sandi, Jalaun at Orai. During the course of employment, the petitioner was posted at different places.

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The services of the petitioner are governed by the Rules known as the U.P. Homeopathic Hospital Services Rules, 1990 (hereinafter referred to as the 1990 Rules). The said Rules were amended in the year, 2016. As per Rule 25 of 1990 Rules, such matters not provided in aforesaid rules shall be governed by the general general rules applicable to the employees of State Government.

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The Central Government took a decision, vide notification dated 31.05.2016 to enhance the retirement age of specialists of non teaching and public health sub cadres of Central Health Services and General Duty

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Medical Officers. As such, the age of superannuation was revised to 65 years.

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The ministry of Ayurveda, Yoga, Naturopathy, Unani, Siddh and Homeopath (AYUSH for short), Government of India issued an order whereby it was communicated that the age of superannuation of AYUSH Doctors is also enhanced up to 65 years.

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In view of above, the State Government issued the notification dated 31.05.2017, whereby a decision was taken to enhance the age of Medical Officers of the department of Alopathic to 62 years.

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A similar decision was also taken by the Employees State Insurance Corporation to enhance the age of superannuation of Doctors i.e. Alopathic and AYUSH up to the age of 62 years. The copy of the notification issued by the Employees State Insurance Corporation dated 14.07.2017 is on record at page 24 of the paper book.

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The petitioner who belongs to the cadre of Medical Health Officer (Homeopathic) and governed by the U.P. Homeopathic Hospital Services Rules, 1990 claims that he be also granted the benefit of enhancement of the age of superannuation.

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It is apposite to mention here that the controversy involved in the present petition came up for consideration before the Supreme Court in North Delhi Municipal Corporation Vs. Dr. Ram Naresh Sharma and Others, 2021 SCC OnLine SC 540 wherein the Court has held as under in paragraph 23 and 24 of the report;-

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"23. 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

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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.

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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. 14019/4/2016-E-I (AYUSH)) dated 24.11.2017 must be retrospectively applied from 31.05.2016 to all concerned respondentdoctors, in the present appeals. All consequences must follow from this conclusion."

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It is the case of the petitioner that the issue involved in the present writ petition stands squarely covered by the judgment of Supreme Court referred to above. Consequently, the petitioner is also entitled to the benefit of the same as there is nothing on record to distinguish the said judgment in relation to the petitioner.

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The claim of the petitioner has, however, been disputed by the respondents in the counter affidavit filed by them on the ground that since there is no amendment in the Service Rules governing the services of the petitioner, therefore, the claim raised by the petitioner seeking enhancement in his age of superannuation is untenable. The claim of the petitioner, in the light of the decision taken by the Central Government and the judgment of the Supreme Court referred to above, is illusionary. Until and unless there is an amendment in the Service Rules enhancing the age of retirement, the claim of the petitioner shall be misconceived.

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Mr. A.B. Singh, the learned counsel for petitioner in support of the present writ petition as referred to the order dated 27.01.2023 passed in WRIT-A No. 30915 of 2021 (Dr. Surendra Pratap Yadav Vs. State of U.P. and Another) .The judgment is a short one, therefore, the same is being reproduced in its entirety:-

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"Heard learned counsel for the petitioner and learned Standing Counsel for the State.

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Present writ petition is filed by the petitioner challenging the order dated 17.12.2021 passed by respondent no.2 Director, Department of Homeopathy, U.P. 8th Floor, Indira Bhawan, Lucknow. By the said order petitioner is retied w.e.f. 31.12.2021 at the age of 60 years.

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The facts of the case are that petitioner is a homeopathic doctor working with the State Government. By notification dated 31.05.2017, the age of the medical officers of the Provincial Medical and Health Service in the State of U.P. was enhanced from 60 years to 62 years. The doctors working under the Provincial Medical and Health Service are doctors of Allopathy. The services of doctors of homeopathy belong to Homeopathic Medical Service Cadre and the benefit of the notification dated 31.05.2017 is not extended to them.

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Learned counsel for the petitioner relies upon the judgment of the Supreme Court passed in 'North Delhi Municipal Corporation Vs. Dr. Ram Naresh Sharma and others' reported in 2021 SCC Online SC 540. Paragraph-23 and 24 of the said judgment reads:-

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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.

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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. 14019/4/2016-E-I (AYUSH)) dated 24.11.2017 must be retrospectively applied from 31.05.2016 to all concerned respondentdoctors, in the present appeals. All consequences must follow from this conclusion."

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On the other hand, learned Standing Counsel submits that the benefit of the aforesaid judgment could not be granted to the petitioner inasmuch as in the said case the Union of India had issued a separate order giving benefit of enhancement in age of retirement to the Ayush doctors along with Allopathic doctors.

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I have heard learned counsels for the parties and also perused the records and the judgment placed before this Court with their assistance.

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In case of Dr. Ram Naresh Sharma (supra), Union of India enhanced the age of retirement of Allopathic doctors working at Delhi from 60 years to 65 years. The said benefit, however, was not extended to Ayush doctors, hence, a claim petition was filed before the Central Administrative Tribunal which was allowed vide order dated 24.08.2017 holding that the Ayush doctors are also entitled to retire at the age of 65 years as the Allopathic doctors. Against the said order, a writ petition was filed before the High Court which was also dismissed by order dated 15.011.2018, affirming the order of the Tribunal. The matter reached the Supreme Court. During pendency of the writ petition, the Central Government issued notification extending the benefit of retirement age of 65 years to the Ayush doctors also, along

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with Allopathic doctors.

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Be the facts as they may, the Supreme Court considered the classification created by the Central Government between the Ayush and doctors of CHS practicing Allopathy and held that the same is discriminatory and unreasonable, since doctors under both the segment are performing the same function of treating and healing their parents. Merely because they are using different mode of treatment, it would not qualify as an intelligible differentia. Thus, the classification to be unreasonable and discriminatory and inconsistent with Article 14 of the Constitution of India. The same are the circumstances of the present case. Doctors practicing Allopathy working under the Provincial Medical and Health Services are given the benefit of retirement at the age of 62 years while petitioner who belongs of Homeopathic Medical Service Cadre and treats his patients through homeopathy is not given the benefit of retirement age of 62 years. The same again is a classification hit by Article 14 of the Constitution of India as held by Supreme Court in case of Dr. Ram Naresh Sharma (supra).

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In view thereof, the impugned order dated 17.12.2021 is hereby set aside.

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Petitioner is permitted to continue in service till the age of 62 years and he shall be provided all consequential benefits of service in accordance with law.

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With the aforesaid, the writ petition stands allowed."

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On the above premise, the learned counsel for petitioner contends that since the case of the present petitioner is similar and identical to that of Dr. Surendra Pratap Yadav (Supra) , the petitioner is also entitled to similar protection from this Court.

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According to the learned counsel for petitioner, the petitioner has superannuated from his service on 31.05.2022. However, the present writ petition was filed much before. In case, the age of retirement of the petitioner is treated to be 62 years then in that eventuality, petitioner shall be entitled to the salary for the period falling in the interregnum i.e. the date of retirement up to the date of this order. In this regard, he has

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referred to the judgment of the Rajsthan High Court in D.B. Civil Writ Petition No. 13496 of 2021 (Dr. Mahesh Chandra Sharma and others Vs. State of Rajsthan and Others). He, therefore, contends that in case, this Court comes to the conclusion that the age of superannuation of the petitioner shall be 62 years then in that eventuality, the petitioner shall be entitled to the entire salary for the intervening period.

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Learned Standing Counsel has opposed the said submission on the ground that since petitioner has not worked beyond 31.05.2022, therefore, on the principle of No Work No Pay, he cannot claim any salary for the said period.

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I have heard the learned counsel for petitioner and the learned Standing Counsel.

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This Court finds that issue involved in the present writ petition stands squarely covered by the judgment of this Court in the case of Dr. Surendra Pratap Yadav (Supra). Accordingly, the petitioner shall be allowed to continue in service till the age of 62 years. He shall also be granted the benefits of continuity of service along with all consequential benefit in accordance with law as awarded in the case of Dr. Surendra Pratap Yadav (Supra).

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The writ petition is accordingly allowed .

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Cost made easy.

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Order Date :- 11.08.2023 Vinay

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Digitally signed by :- VINAY KUMAR High Court of Judicature at Allahabad

Dr.Ajit Kumar v. State of U.P. and 2 Others

Case brief

What is this about?

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Dr.Ajit Kumar v. State of U.P. and 2 Others

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