Allowed

Dr. Sarvesh Pradhan v. State of Rajasthan

Rajasthan HC26 Feb 2024CW/5821/2023

Case brief

AI extract

What is this about?

A BDS-qualified Principal Specialist challenged Rule 56 amendment extending MBBS officers' superannuation age to 62 years while dental officers retired at 60. Following a coordinate bench precedent upheld by the Apex Court, this Court held no intelligible differentia existed and allowed the petitioner to serve until 62.

What did the court decide?

Words 'Medical Officers holding BDS/MBBS degrees' read into notification dated 31.03.2016; petitioner allowed to continue till 62 years with consequential benefits.

Dr. Sarvesh Pradhan Vs State of Rajasthan — Pension and Retirement Benefits | Rajasthan HC (2024)

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[2024:RJ-JD:10459-DB]

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Civil Writ Petition No. 5821/2023

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Dr. Sarvesh Pradhan S/o Shri Roop Narayan Pradhan, Aged About 59 Years, Presently Posted At Principal Specialist (Dental) Community Health Center, Merta City, District Nagaur.

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----Petitioner

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Versus

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State Of Rajasthan, Through The Secretary, Department Of Personnel, Government Of Rajasthan, Jaipur (Raj.).

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Principal Secretary, Department Of Medical And Health Services, Government Of Rajasthan, Jaipur (Raj.).

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The Secretary, Department Of Medical And Health Services (Group-Ii), Govt. Of Raj. Jaipur.

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Director (Ph), Medical And Health Services, Government Of Rajasthan, Jaipur (Raj.).

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----Respondents

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For Petitioner(s)	: Mr. Vishal Sharma
For Respondent(s)	: Mr. Tapendra Sankhla for
	Mr. B.L. Bhati,AAG

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI HON'BLE MR. JUSTICE MUNNURI LAXMAN

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Order

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26/02/2024

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This writ petition has been preferred under Article 226 of the Constitution of India claiming the following reliefs:

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“It is therefore most respectfully prayed that the writ petition may kindly be allowed and:-

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(a) By an appropriate writ, order or direction the proviso to Rule 56 of Rajasthan Civil Services Rules 1951 as inserted by amendment dated 31.03.2016 as it relates to

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(2 of 10)

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[2024:RJ-JD:10459-DB]

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[CW-5821/2023]

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superannuation in respect of MBBS Degree holder officer of the Rajasthan Medical and Health Service may kindly be declared discriminatory and violative of Article 14 and 16 of the Constitution of India and same be declared as ultra vires and the respondents may kindly be directed to amend/include Medical Officers (Dental) holding BDS Degree in the proviso so that their age of superannuation shall also be 62 years.

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(b) That amendment in the Rule 56 of Rajasthan Service rules by insertion of proviso notification dated 31.03.2016 may kindly be quashed so far as it relates to extension of age of MBBS degree holder Medical Officers and the words “MBBS Degree holder” may be deleted being violative of 14 & 16 of the constitution of India.

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(c) Alternatively, the respondent State Government may be directed to further insert fresh proviso to Rule 56 of the Rajasthan Civil Service Rules 1951 regarding the medical officers holding BDS/MDS Degree, in consonance with the proviso of Rule 56 by which the age of superannuation in respect of MBBS degree holder Medical Officers of the Rajasthan Medical Service (Collegiate Branch) has been increased to 62 years.

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(d) That the order no.2/2023 (Annex.5) may kindly be quashed and set aside and the petitioner may be allowed to continue in the service upto the age of 62 years.

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(e) The costs of this writ petition may kindly be awarded in favour of the petitioner.

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(f) Any other appropriate order or direction which this Hon’ble Court considers just and proper in the facts and circumstances of this case may kindly be passed in favour of the petitioner.”

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Brief facts as placed before this Court by learned counsel for the petitioner are that the petitioner is holding qualification of Bachelor of Dental Surgeon (BDS) and was initially appointed on the post of Medical Officer (Dental) through recruitment process of Rajasthan Public Service Commission (RPSC) and was thereafter promoted to the post of Principal Specialist in CHC, Merta City.

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2.1. Subsequently, the State Government vide notification dated 31.03.2016 an amendment was made in Rule 56 of the Rajasthan Service Rules, 1951 ( in short, ‘Rules of 1951’ ) by the Rajasthan Service (Second Amendment) Rules, 2016.

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2.2. Thereafter in pursuance of the notification dated 30.03.2018, an order dated 31.03.2018 came to be passed by the State Government enhancing the age of MBBS degree holder superannuation of Medical Teachers of Rajasthan Medical Service from 62 years to 65 years.

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2.3. Subsequently, the respondent department issued order no.

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2/2023 on its official website for retirement of medical officers/senior medical officers/junior specialists and other higher posts wherein the persons mentioned in the list were to retire on attaining the age of superannuation of 62 years, however name of the petitioner was mentioned at Serial no. 35 and as per the given date of retirement, the petitioner was to retire at the age of 60 years.

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2.4. In consequence of the notification dated 31.03.2016, the age of superannuation was increased from 60 years to 62 years for MBBS degree holder officer. In further, a representation was also submitted by the petitioner on 10.04.2023 inviting attention, amongst others, towards the undue anomaly caused in the service conditions of MBBS Degree Holders and BDS Degree Holders vide notification dated 31.03.2016. Aggrieved of the notification dated 31.03.2016 and order no.2/2023, the present petition has been preferred claiming the afore-quoted reliefs.

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(4 of 10)

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Learned counsel for the petitioner submits that the Medical Officers holding the qualifications of MBBS and BDS are recruited to the Rajasthan Medical Services by common mode of recruitment through RPSC, even the promotions are done through common DPC, thus there exists no separate eligibility criteria for recruitment and selection to Rajasthan Medical Services in respect of candidates holding MBBS or BDS qualification.

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3.1. Learned counsel further submits that the impugned notification dated 31.03.2016 has been issued by the respondent State without any rationale, causing changes in conditions of service and benefits of service qua Medical Officers holding MBBS degree only, the same being clearly violative of Article 14 of the Constitution of India. In furtherance, the said action of the respondent State has resulted in causing benefit to only one class of officers whereas there exists two distinct classes of officers out of one common cadre placing the other class at apparent disadvantage, the same being clearly unreasonable and unjust in the eye of law.

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3.2. Learned counsel has placed reliance on the judgment rendered by the Hon’ble Apex Court in the case of North Delhi Municipal Corporation v. Dr. Ram Naresh Sharma (Civil Appeal no.4578/2021, decided on 03.08.2021 ).

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3.3. Further reliance was placed upon the judgment rendered by a Division Bench of this Hon’ble Court in the case of Dr. Ranjan

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Mathur v. State of Rajasthan (D.B.C.W.P. No. 6312/2022

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decided on 06.09.2022) wherein a similar controversy as that of the present case was dealt with, regarding the notification dated

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30.03.2018. Learned counsel also clarified that the said judgment was thereafter challenged before the Hon’ble Apex Court in the case of State of Rajasthan & Ors. Vs. Dr. Mahesh Chandra Sharma & Ors. - Petition (s) for Special Leave to Appeal (c) No.14308-14318/2022 alongwith SLP(c) No. 19112/2022 and the said special leave petition was dismissed vide order dated 25.11.2022.

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On the other hand, learned counsel for the respondents, while opposing the submissions made on behalf of the petitioner, submits that the impugned notification and the impugned order are based on intelligible differentia as the age of doctors holding MBBS Degree was increased from 60 to 62 years to address the issue of lack of Allopathy doctors.

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4.1. Learned counsel further submits that a large number of vacancies remained unfilled in medical colleges and Government hospitals whereas the vacant posts for BDS doctors is Nil, and thus, the amendment in the year 2016 was introduced in the Rules of 1951. In furtherance, learned counsel submits that if the age of doctors is not increased to 65 years then the State of Rajasthan would not have been able to comply with the MCI Rules which require minimum number of doctors for opening new medical colleges.

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4.2. Learned counsel placed reliance on the judgment rendered by the Hon’ble Apex Court in the case of Nagaland Senior

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Government Employees Welfare Association and Ors. v. State of Nagaland (2010) 7 SCC 643 .

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(6 of 10)

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In rejoinder, learned counsel for the petitioner submits that an analysis of the status of posts upto 31.12.2022 clearly showcases that around 35% posts of MBBS doctors (Medical Officers) and BDS doctors (Medical Officer Dental) are lying vacant, thus the submissions of the respondents of vacancies in the BDS doctors being Nil does not stand. In furtherance, the last recruitment process was taken in January 2018, thus for five years not a single recruitment process has been initiated to fill vacant posts of BDS doctors.

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Heard learned counsel for the parties as well as perused the record of the case alongwith the judgments cited at the Bar. 7. This Court observes that the petitioner is holding the qualification of BDS degree and is working on the post of Principal Specialist in CHC, Merta City; an amendment was made in the Rule 56 of the Rules of 1951 by the Rajasthan Service (Second Amendment) Rules 2016 vide/by notification dated 31.03.2016 whereby the age of superannuation of only MBBS Degree holders was increased to 62 years whereas that was not the case for the Medical Officers holding BDS degree; further, order No.2/2023 came to be passed by the respondent State wherein the superannuation age of the petitioner as per the said order came out to be 60 years when instead the age of superannuation of the other doctors mentioned in the above said order was 62 years.

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7.1. This Court also observes that the aforementioned amendment was made in Rule 56 of the Rules of 1951 by the Rajasthan Service (Second Amendment) Rules, 2016; the said amendment is reproduced as hereunder:

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“ 2. Amendment of rule 56.- In rule 56 of the Rajasthan Service Rules, 1951, after the existing proviso and before the existing note, the following new proviso shall be inserted, namely:-

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Provided further that the age of superannuation in respect of MBBS degree holder Medical Teachers of the Rajasthan Medical Service (Collegiate Branch) and MBBS degree holder Officers of the Rajasthan Medical & Health Service shall be 62 years.”

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This Court further observes that an interim order dated 03.05.2023 is operating in favour of the petitioner, which reads as under:

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“By way of instant writ petition, the petitioner has challenged the validity of Notification dated 31.03.2016 issued by the State Government, whereby while amending Rule 56 of Rajasthan Civil Services Rules, 1951, the age of superannuation in respect of MBBS degree holder medical teachers of the Rajasthan Medical Services (Collegiate Branch) and MBBS degree holder officers of the Rajasthan Medical and Health Services has been enhanced from 60 to 62 years.

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The petitioner is being aggrieved by the action of the State Government of not including the BDS degree holders in the notification dated 31.03.2016. It is submitted that qualifications of BDS and MBBS degree holders are similar and both of them are being recruited to the Rajasthan Medical Services by common mode of recruitment under the Rajasthan Medical and Health Services Rules, 1962 through Rajasthan Public Service Commission.

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It is submitted that the promotions of BDS and MBBS degree holders are being considered by a common DPC and both are also discharging similar duties. It is submitted that vide impugned notification, the State Government has enhanced superannuation age of MBBS degree holders from 60 to 62 years, however, the BDS degree holders are not

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included in it and the said action of the State Government is in violation of Article 14 of the Constitution of India.

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Learned counsel for the petitioner has placed reliance on the decision dated 15.09.2022 rendered by a Division Bench of this Court in Dr. Rajan Mathur vs State of Rajasthan and Ors. (D.B. Civil Writ Petition No.6312/2022).

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Issue notice. Issue notice of stay petition as well, returnable on 10th July, 2023.

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In the meantime, the respondents are directed not to superannuate the petitioner on 30th June, 2023.”

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This Court is conscious of the judgment rendered in the case of Dr. Rajan Mathur (supra) by the Division Bench of this Hon’ble Court, the relevant portion is reproduced hereunder:

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“ Heard submissions advanced at Bar and perused the material available on record.

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The service conditions of Medical Teachers possessing MBBS degree and BDS degree is governed by the Rules of 1962. The Medical Teachers irrespective of their stream are required to discharge similar duties. The respondents have not placed on record any material which would justify the classification made by them in formation of two separate classes among the employees governed by the same service conditions and recruitment rules. Since, statistics with regard to number of MBBS and Dental Medical Teachers available with the department has not been placed on record, it can safely be concluded that there is no intelligble differentia for treating the Medical Teachers holding the MBBS degrees and those holding BDS degree differently. On the contrary, petitioner has placed on record various documents/orders which reflect that in various services viz. Railways, Defence (Civilian Doctors under Directorate General of Armed Forces Medical Service) etc., a conscious decision has been taken to enhance the age of superannuation of dental doctors from 62 years to 65 years so as to bring them at par with MBBS doctors. The action of the respondents amounts to hostile discrimination insofar as

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the dental doctors have been denied the benefit of enhanced age of superannuation. The notification dated 30.03.2018, issued by the Government of Rajasthan is in clear violation of Article 14 of the Constitution of India.

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A co-ordinate bench of this Court in a batch of writ petitions led by the case of Dr. Mahesh Chandra Sharma & Ors. v. State of Rajasthan (D.B. C.W. No. 13496/2021) examining a similar controversy held that action of the state in fixing age of superannuation of AYUSH doctors lower in comparison to the allopathic doctors amounts to hostile discrimination.

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In the result of aforesaid discussion, the wordsMedical Teachers holding BDS/MDS degrees shall be read into the notification dated 30.03.2018. Consequently, it is ordered that the petitioner shall be allowed to continue in service upto the age of 65 years. The respondent authorities shall pass necessary orders to continue Medical Teachers (Dental) in service till the age of 65 years with all consequential benefits. It is however made clear that the Medical Teachers (Dental) who have already superannuated shall not be entitled to claim reinstatement in service .

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The writ petition is allowed in above terms. No order as to costs.”

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This Court also observes that the above said judgment Dr. Rajan Mathur (supra) was challenged before the Hon’ble Apex Court in SLP(c) no. 19112/2022 (supra) and the said petition was dismissed, the relevant portion whereof is reproduced as hereunder:

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“It is not in dispute that this petition involves extending the higher age of retirement to BDS Doctors/teachers who are also engaged in teaching in medical colleges. We see no reason to interfere. The special leave petition is dismissed.”

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(10 of 10)

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Thus, it is clear that there exists no intelligible differentia as claimed by the respondent State, and hence, in light of the aforesaid observations and looking into the factual matrix of the present case, this Court is of the opinion that a similar controversy already being settled by a Coordinate Bench of this Hon’ble Court the present petition deserves to be allowed.

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11.1. As a result of the aforesaid discussion, the words- Medical Officers holding BDS/MBBS degrees shall be read into the notification dated 31.03.2016.

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Consequently, this Court allows the present petition. Accordingly, while quashing and setting aside the order No.2/2023 (Annex.5), qua the petitioner , it is ordered that the petitioner shall be allowed to continue in service upto the age of 62 years. The respondent authorities shall pass necessary orders to continue Medical Officers (Dental) in service till the age of 62 years with all consequential benefits. It is however made clear that the Medical Officers (Dental) who have already superannuated shall not be entitled to claim reinstatement in the service, in pursuance of this order. All pending applications stand disposed of.

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(MUNNURI LAXMAN), J. (DR. PUSHPENDRA SINGH BHATI), J.

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30-SKant/-

Dr. Sarvesh Pradhan v. State of Rajasthan

Case brief

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Dr. Sarvesh Pradhan v. State of Rajasthan

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