Rajasthan High Court - Jaipur
Dr Pradeep Sharma vs State Education Department Ors on 3 October, 2018
Bench: Mohammad Rafiq, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No.7557/2018
With
D.B. Civil Misc. Stay Application No.5641/2018
Dr. B.S. Meena Son Of Late Shri M.l. Meena, By Caste Meena,
Resident Of Quarter No. 6, Mahila Chikitsalaya, Sanganeri Gate,
Jaipur.
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Medical
Education Department, Government Of Rajasthan,
Government Secretariat, Jaipur.
2. Department Of Personnel, Government Of Rajasthan,
Through Its Principal Secretary, Department Of Pe,
Government Of Rajasthan, Government Secretariat,
Jaipur.
3. Principal And Controller, Sawai Man Singh Medical College
And Attached Hospitals, JLN Marg, Jaipur
----Respondents
Connected With
D.B. Civil Writ Petition No.7556/2018
With
D.B. Civil Misc. Stay Application No.5640/2018
Dr. Pradeep Sharma Son Of Late Dr. Rameshwar Sharma, By
Caste Sharma, Resident Of B-32, Vijay Path, Tilak Nagar, Jaipur
----Petitioner
Versus
1. State Of Rajasthan, Through Its Secretary, Medical
Education Department, Government Of Rajasthan,
Government Secretariat, Jaipur.
2. Department Of Personnel, Government Of Rajasthan,
Through Its Principal Secretary, Department Of Pe,
Government Secretariat, Jaipur.
3. Principal And Controller, Sawai Man Singh Medical College
And Attached Hospitals, JLN Marg, Jaipur
----Respondents
D.B. Civil Writ Petition No.9335/2018
With
D.B. Civil Misc. Stay Application No.7055/2018
AND
D.B. Civil Misc. Stay Application No.7056/2018
1. Dr. U.S. Agarwal S/o Late Shri Manohar Lal Agarwal, R/o
397, Shri Gopal Nagar, Gopalpura Byepass, Jaipur,
Rajasthan. Presently Working As Principal And Controller
(2 of 55) [CW-7557/2018]
Of The S.M.S. Medical Collage And Attached Hospital
Jaipur, Rajasthan.
2. Dr. S.K. Jain S/o Late Shri M.C. Jain, R/o 230, Himmat
Nagar, Gopalpura Mod, Jaipur, Rajasthan, Presently
Working As Additional Principal S.M.S. Medical Collage,
Jaipur, Rajasthan.
----Petitioners
Versus
1. State Of Rajasthan Through Chief Secretary, Government
Of Rajasthan, Government Secretariat, Jaipur, Rajasthan.
2. The Special Secretary To The Government, Finance
Department, Government Of Rajasthan, Secretariat,
Jaipur, Rajasthan.
3. The Principal Secretary, Medical Education, Government
Secretariat, Jaipur, Rajasthan.
----Respondents
D.B. Civil Writ Petition No.9550/2018
With
D.B. Civil Misc. Stay Application No.7220/2018
1. Dr. V.d. Sinha S/o Shri H.d. Sinha, Presently Posted As
Head Of The Department, Neurosurgery, Sms Medical
College, Jaipur And Resident Of 53, Mojo Colony Malviya
Nagar, Jaipur.
2. Dr. Vinay Tomar S/o Shri P.S. Tomar, Presently Posted As
Head Of The Department, Urology, SMS Medical College,
Jaipur And Resident Of C-314A, Hari Marg, Malviya Nagar,
Jaipur, Rajasthan.
----Petitioners
Versus
1. State Of Rajasthan Through Chief Secretary, Government
Of Rajasthan, Government Secretariat, Jaipur, Rajasthan.
2. The Special Secretary To The Government, Finance
Department, Government Of Rajasthan, Secretariat,
Jaipur, Rajasthan.
3. The Principal Secretary, Medical Education, Government
Secretariat, Jaipur, Rajasthan.
----Respondents
D.B. Civil Writ Petition No.11372/2018
With
D.B. Civil Misc. Stay Application No.8673/2018
Dr. Rajendra Kumar Gokhroo Son Of Lt. Sh. H C Gokhroo, By
Caste Jain, Resident Of 22/16, Vaishali Nagar, Ajmer.
----Petitioner
Versus
1. State Of Rajasthan Through Its Secretary, Medical
Education Department, Government Of Rajasthan,
(3 of 55) [CW-7557/2018]
Government Secretariat, Jaipur.
2. Department Of Personal, Government Of Rajasthan,
Through Its Principal Secretary, Department Of Per,
Secretariat, Jaipur.
3. Department Of Medical, Health And Family Welfare,
Government Of Rajasthan Through Its Principal Sec,
Secretariat, Jaipur.
----Respondents
D.B. Civil Writ Petition No.14571/2018
With
D.B. Civil Misc. Stay Application No.11502/2018
Dr. Naresh N. Rai, Son Of Shri Nihal B. Rai, Aged About 61 Years,
Resident Of 1/3, Medical College Campus, Rangbari Road, Kota
(Raj).
----Petitioner
Versus
State Of Rajasthan Through Its Chief Secretary, Government Of
Rajasthan Secretariat, Jaipur.
----Respondent
Advocates who appeared in the cases:
For Petitioner(s) : Mr. Rajendra Kumar Soni with
Mr. Vishal Soni in Writ Petitions
No.7557/2018, 7556/2018
Mr. Mahendra Shah with
Mr. Raja Ram Choudhary and
Mr. Kamlesh Sharma, in Writ Petitions
No.9335/2018, 9550/2018,
14571/2018
Mr. Vinay Mathur in Writ Petition
No.11372/2018
For Respondent(s) : Mr. Rajendra Prasad, Additional
Advocate General, assisted by
Mr. Karan Tibrewal
Mr. Y.S. Jadaun for Mr. S.K. Gupta,
Additional Advocate General
Mr. Ajeet Kumar Sharma, Senior
Counsel, assisted by
Mr. V.K. Sharma, for interveners
Mr. Prakhar Gupta for
Mr. R.P. Singh, Senior Advocate
Mr. Himanshu Jain and
Mr. Shishupal Singh
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ
HON'BLE MR. JUSTICE GOVERDHAN BARDHAR
ORDER
//Reportable//
03/10/2018
(4 of 55) [CW-7557/2018]
Per Hon'ble Mr. Justice Mohammad Rafiq:
Since all these writ petitions involve similar questions of the
facts and the law, they were heard together and are being decided
by this common judgment.
The petitioners in all these writ petitions are senior doctors in
different branches of super-speciality and holding administrative
positions in different Medical Colleges of the State Government.
They have approached this court with a common grievance
challenging that part of second proviso to Rule 56 of the Rajasthan
Service Rules, 1951, (for short, 'the RSR') introduced vide
amendment by Notification dated 30.03.2018, which, while
enhancing the age of superannuation in respect of MBBS degree
holder Medical Teachers of the Rajasthan Medical Service
(Collegiate Branch) from 62 to 65 years, restricted their
continuation during the enhanced period only on non-
administrative posts. At the time of issuance of the impugned
Notification dated 30.03.2018, petitioner Dr. B.S. Meena in Writ
Petition No.7557/2018 was working on the post of Medical
Superintendent, Mahila Chikitsalaya, Jaipur, petitioner Dr. Pradeep
Sharma in Writ Petition No.7556/2018 was working on the post of
Professor and Head of Department (Psychiatric) and
Superintendent, Psychiatric Centre, Jaipur, petitioners Dr. U.S.
Agarwal and Dr. S.K. Jain in Writ Petition No. 9335/2018 were
respectively working on the post of Principal & Controller and
Additional Principal, S.M.S. Medical College and attached Hospitals
thereto, Jaipur, petitioners Dr. V.D. Sinha and Dr. Vinay Tomar in
Writ Petition No.9550/2018 were respectively working on the post
of Head of Department, Neurosurgery, and Head of Department,
Urology, S.M.S. Medical College, Jaipur, petitioner Dr. Rajendra
(5 of 55) [CW-7557/2018]
Kumar Gokhroo in Writ Petition No.11372/2018 was working on
the post of Principal and Controller, J.L.N. Medical College, Ajmer,
and petitioner Dr. Naresh N. Rai in Writ Petition No.14571/2018
was working on the post of Additional Principal, Government
Medical College, Kota.
Indisputably, the conditions of service of all the petitioners
are regulated by the Rajasthan Medical Services (Collegiate
Branch) Rules, 1962, they being the members of the cadre of the
Rajasthan Medical Services (Collegiate Branch). So far as their age
of superannuation is concerned, the conditions of their services in
this behalf were regulated by Rule 56 of the Rajasthan Service
Rules, 1951 (for short, 'RSR'), which, while originally provided as
under:
"56. The date of compulsory retirement of a
Government servant would be the afternoon of the last
day of the month in which he attains the age of 60
years.
Provided that the provisions of age of compulsory
retirement, as contained in this rule, shall not be
applicable in the case of Government servants who are
in service after attaining the age of compulsory
retirement either on reemployment or on extension in
service."
The second proviso of Rule 56 of the RSR was introduced by
way of amendment vide Notification dated 31.03.2016 in the
following terms:-
"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."
The effect of the aforesaid amendment was that while the
age of retirement of all other Government servants continued to
be 60 years but in the case of MBBS degree holder Medical
(6 of 55) [CW-7557/2018]
Teachers of the Rajasthan Medical Service (Collegiate Branch) and
MBBS degree holder Officers of the Rajasthan Medical & Health
Service, it stood uniformly extended to 62 years.
A photostat copy of the note-sheet of the official file, on
which the proposal for enhancing the age of retirement from 62 to
65 years was dealt with, has been placed on record. It is evident
therefrom that the proposal for enhancing the age of retirement
was mooted taking clue from similar provision introduced by the
Department of Personnel, Government of India, vide Notification
dated 05.01.2018. Therein also, a similar rider was placed on
continuation of the General Duty Medical Officers and Specialists
included in the category of non-teaching and public health services
on administrative posts after the age of 62 years, even though
their age of retirement was extended to 65 years. The
Government of Rajasthan facing the dearth of Teachers in the field
of medical education for teaching the students and doctors in
super-speciality for treatment of the needy patients, introduced
the third proviso to Rule 56 of the RSR vide notification dated
30.03.2018, which reads thus:-
"Provided further that the age of superannuation in
respect of MBBS degree holder Medical Teachers of the
Rajasthan Medical Service (Collegiate Branch) shall be
65 years. After attaining the age of 62 years, the
services of such Medical Teachers shall be placed on
Non Administrative positions only.
The age of superannuation in respect of MBBS degree
holder Officers of the Rajasthan Medical & Health
Service shall remain 62 years."
Clearly, the State Government did not extend the age of
retirement of MBBS degree holder Officers of the Rajasthan
Medical & Health Service, which continued to remain 62 years, but
(7 of 55) [CW-7557/2018]
only extended the age of retirement of medical teachers with the
aforesaid rider. The petitioners are not aggrieved by extension of
age of retirement from 62 to 65 years, rather this amendment is
beneficial to them. However, they have assailed the constitutional
validity of the latter part of the aforesaid proviso, which restricts
their continuation in service on administrative position beyond the
age of 62 years.
Mr. Mahendra Shah, the learned counsel for the petitioners in
Writ Petitions No.9335/2018, 9550/2018 and 14571/2018, has
argued that even though the State Government is empowered to
prescribe the age of superannuation of the Medical Teachers, but
Entry 25 List III (State List) Schedule VII of the Constitution,
which gives such power to the State Government, is itself subject
to Entry 66 List I (Union List) Schedule VII of the Constitution.
The Parliament has by virtue of the said Entry, enacted the Indian
Medical Council Act, 1956. The Medical Council of India, in
exercise of the powers conferred by Section 33 of the Indian
Medical Council Act, 1956 (Act of 1956) and with the previous
sanction of the Central Government, promulgated the Medical
Council of India Minimum Qualifications for Teachers in Medical
Institutions Regulations, 1998 (for short, 'the MCI Regulations'),
with the object of prescribing minimum qualification and
experience for appointment of medical teachers in various
departments of medical colleges and institutions imparting
graduate and post-graduate medical education to maintain
standard of teaching. Regulation 3 of the MCI Regulations,
amended in the year 2009, provides that the minimum
qualifications for appointment as a teacher in various departments
(8 of 55) [CW-7557/2018]
of a medical college or institution imparting graduate and post-
graduate education shall be as specified in the Schedules I and II
annexed thereto. The learned counsel for the petitioners made
specific reference to Clause 1A of Schedule-I appended to the MCI
Regulations, to argue that the maximum age limit upto which a
person can be retained or granted extension in service on the post
of Medical Teacher, Dean or Principal or Director, as the case may
be, shall be 70 years. It is argued that Clause 8 of the Schedule-I
provides the "names of the teaching posts, academic qualifications
and the teaching or research experience" required for each
teaching post are given in Table-1 in respect to graduate and post-
graduate higher speciality courses and in Table-2, in respect of
super-speciality courses. Table-1 appended to the MCI Regulations
provides that preference for appointment on the posts of
Principal / Dean / Director of Medical Institution, may be given to
the Head of Department. The argument therefore is that if a
candidate is not allowed to continue as Head of Department
beyond the age of 62 years, he shall forever lose the chance to
become either Principal or Dean or Director of Medical Institutions.
Mr. Mahendra Shah, the learned counsel argued that the post
of Principal has been encadered in the MCI Regulations and not in
the Rajasthan Medical Services (Collegiate Branch) Rules, 1962
(for short, 'the Rules of 1962'), even though a mention of the post
of Principal is made in Rule 3(f) of the Rules of 1962. Putting such
a rider would tantamount to altering the conditions of service of
the petitioners. The post of Principal is filled in from amongst the
eligible Senior Professors through selection by the Selection
Committee. The learned counsel has referred to order dated
(9 of 55) [CW-7557/2018]
28.01.2015 of the Deputy Secretary to the Government, Medical
Education (Gr-1) Department, Government of Rajasthan, Jaipur
(Annexure-1), by which petitioner Dr. U.S. Agarwal, who was a
Senior Professor of Skin & VD, Medical College, Jaipur, was, on
recommendation of the Selection Committee, selected and
substantively appointed as Principal & Controller of S.M.S. Medical
College and attached Hospitals, Jaipur. He became "Member of
Service", having acquired lien on the post of Principal, and would
have the right to continue on such post till the age of
superannuation. Once the age of retirement has been enhanced
from 62 to 65 years, there is no justification whatsoever in not
continuing the petitioners on the post of Principal/other
administrative posts by virtue of latter part of second proviso to
Rule 56 of the RSR, which is wholly arbitrary and discriminatory
inasmuch as this Rule results in an unreasonable classification by
treating the equals as unequal. While Rule 56 of the RSR is
general rule applicable to all the government servants, age of
retirement of the Medical Teachers has been enhanced in
pursuance of the amendment to Clause 1A of the Schedule-I of
the MCI Regulations by Notification dated 17.09.2010 substituting
the earlier age of retirement of '65 years' by '70 years'. There is
thus no justification for having a rider of not allowing the
petitioners, appointed by way of selection, to hold the
administrative posts continuously beyond the age of 62 years,
even though they can otherwise continue in service up to the age
of 65 years. It is argued that when the experienced Principal, like
the petitioner Dr. U.S. Agarwal, is available to provide better
services, no public purpose would be served by discontinuing him
(10 of 55) [CW-7557/2018]
on such post. As far as medical education and treatment of
patients is concerned, even a Principal is required to do so on
regular basis.
The learned counsel argued that the respondents in making
the impugned amendment have neither consulted the Department
of Personnel nor the Law Department of the Government of
Rajasthan as would be evident from the note-sheet. The
respondents were even not sure of the posts, which, according to
them, were administrative in nature when the amendment in the
provision was introduced. It is only by way of an afterthought that
they issued the order dated 17.04.2018 declaring eight posts to
be administrative in nature. He argued that the condition imposed
in latter part of the third proviso to Rule 56 of the RSR is beyond
the scope of the main provision contained in Chapter IX of the
RSR. It is well settled that a proviso may carve out exception to
main provision but it cannot alter the main provision itself, when
the scope of which is merely to provide the age of superannuation.
By inserting a proviso to the main provision, no such additional or
further condition can be imposed on continuation of the post after
enhancement of the age of retirement. The learned counsel
argued that the Government of India introduced a similar
provision under FR 56(bb) requiring the employees to opt for
extension of service only on non-administrative posts. Such is not
the position of the impugned Rule in the present case. In fact, the
impugned amendment is against the public interest as not only
the students but also the patients would be deprived of treatment
by experienced hands. The administration must always be in the
safe hands of the experienced persons as new persons would take
(11 of 55) [CW-7557/2018]
one to two years to get acquinted with the duties of such posts.
Once the petitioner was allowed to continue on the post of
Principal for a long spell of time, his shifting to the post of
Professor would deprive him of all the perks, facilities and benefits
attached to the post of Principal, which would amount to reduction
in rank. Citing from the judgment of the Supreme Court in Dr. Dr.
Shadab Ahmed Khan and Another Vs. Prof. Mujahid Beg &
Others - (2018) 6 SCC 385, the learned counsel argued that if
there is any conflict between the State Rules and the MCI
Regulations, the latter would prevail. Such a step, besides being
arbitrary, would be violative of Article 14 of the Constitution of
India. There is apparent conflict between the MCI Regulations
flowing from the Central legislation. Moreover, if the petitioners
are made to work under their juniors, that would seriously
prejudice them as they will have to report to their juniors and
such juniors would also write their APARs, which cannot be
accepted.
Mr. Mahendra Shah, the learned counsel, argued that the
proposal sent for enhancing the age of retirement of the medical
teachers from 62 to 65 years, was approved by the Chief Minister
at Para 207/N but subsequently, on further discussion, the Chief
Secretary, in his noting, opined at para 219/N that an exception
should be made in respect of Principal and Superintendent, and
the same was agreed and approved by the Chief Minister on
6.03.2018. Thus, the Rule 56, as amended through Notification
dated 30.03.2018, is contrary to the said decision of the
Government. Even otherwise, such an amendment could be
introduced only prospectively and not retrospectively qua those
(12 of 55) [CW-7557/2018]
already working on such administrative posts. It is argued that the
continuation of the retired Professors as the Principals of the
Medical Colleges, being run by the Rajasthan Medical Education
Society (for short, 'the Raj-MES'), beyond the age of 62 years,
while not according a similar treatment to the pettioners is clearly
discriminatory. The Raj-MES has been established with the
approval of the Cabinet. If the Raj-MES were autonomous body
having its own identity, there was no need of the approval by the
Cabinet. The constitution of the Raj-MES also makes it clear that it
consists of only Officers drawn from the Government, thus the
whole control of the Raj-MES vests in the Government. The
restriction placed by the respondents on continuation of the
medical teachers on administrative positions with the medical
colleges beyond the age of 62 years, is wholly discriminatory as it
tantamount to treating equals unequally.
Mr. Mahendra Shah, the learned counsel for the petitioners,
in support of his arguments, has relied on the judgments of the
Supreme Court in University of Delhi Vs. Raj Singh and
Others - 1994 Supp (3) SCC 516, State of T.N. and Another
Vs. Adhiyaman Educational & Research Institute and Others
- (1995) 4 SCC 104, Dr. Preeti Srivastava and Another Vs.
State of M.P. and Others - (1999) 7 SCC 120, Bharati
Vidyapeeth (Deemed University) and Others Vs. State of
Maharashtra and Another - (2004) 11 SCC 755, Prof.
Yashpal and Another Vs. State of Chhttisgarh and Others -
(2005) 5 SCC 420, Ravi Yashwant Bhoir Vs. District
Collector, Raigad & Others - 2012 (2) Supreme 506, and Dr.
(13 of 55) [CW-7557/2018]
Shadab Ahmed Khan and Another Vs. Prof. Mujahid Beg &
Others, supra, decided vide judgment dated 23.04.2018.
Mr. Rajendra Soni, the learned counsel for the petitioners in
Writ Petitions No.7557/2018 and 7556/2018, apart from adopting
the arguments advanced by Mr. Mahendra Shah, the learned
counsel for petitioners in first set of writ petitions, submitted that
the restriction on continuation of the petitioners on the
administrative posts beyond the age of 62 years is wholly illegal,
being violative of Article 14 of the Constitution of India. Creation
of two categories of Medical Teachers for the purpose of their
posting against administrative and non-administrative posts, on
the basis of differentiation of age, has no reasonable nexus with
the object sought to be achieved. While the age of retirement of
the medical teachers has also been increased upto 65 years in the
States of West Bengal, Gujarat, Madhya Pradesh, Maharashtra,
Bihar, etc., but no such restriction on continuation of those who
crossed the age of 62 years to hold the administrative positions
has been imposed. The action of the respondents being not in
conformity with the judgment of the Supreme Court in K.
Manjushree Vs. State of Andhra Pradesh - (2008) 3 SCC
512, is liable to be declared unconstitutional.
Mr. Rajendra Soni, the learned counsel for petitioners, has
argued that the State of Rajasthan has recently established five
new Medical Colleges in the State under the nomenclature of
Medical Colleges run by the Raj-MES. Most of the appointments in
the Medical Colleges have been made by shifting the faculties
already working in other Medical Colleges on deputation basis for
the purpose of inspection by the Medical Council of India.
(14 of 55) [CW-7557/2018]
Reference is made to the order dated 02.04.2018 issued by the
Principal & Controller, S.M.S. Medical College & attached Hospitals,
Jaipur, passed in compliance of the Government order dated
20.02.2018, whereby twenty-nine Medical Teachers working in the
S.M.S. Medical College, Jaipur, were posted on deputation with the
Medical Colleges at Pali, Churu, Bharfatpur and Bhilwara. If these
medical colleges are being run by the Rajasthan Medical Education
Society, how possibly can the Government post the medical
teachers with them. The government employees can be deputed
only in the government departments/organizations. But
deputation of the Medical Teachers with these Medical Colleges, for
recognition of such colleges by the Medical Council of India was
essential. This clearly proves that all these colleges are
Government Medical Colleges, the Raj-MES is mere camouflage.
Reference is made to the order dated 10.01.2018 passed by the
Additional Director (Admn.)-cum-Joint Secretary, Directorate of
Medical Education, Government of Rajastha, Jaipur, for admission
under NRI Quota in Medical/Dental (UG/PG) Courses in the
colleges of the State of Rajasthan. The Rajasthan Medical
Education Society is nothing but an extension of the Medical and
Health Department as also the Finance Department of the State
Government, which is evident from the Notification dated
12.04.2018 issued by the Rajasthan Medical Education Society,
Jaipur, amending Rule 6(4) of the Rajasthan Medical Education
Society Jaipur Personnel's (Recruitment and other Conditions)
Employment Rules, 2017 (for short, 'the Rules of 2017'), wherein
the age of retirement of the medical teachers in such Medical
Colleges is enhanced from 65 to 70 years as per the MCI
(15 of 55) [CW-7557/2018]
Regulations. The order dated 12.04.2018 clearly indicates that the
said amendments have been carried out with the consent of the
Finance Department of the State.
It is argued that the Convener of the Raj-MES is none other
than the Additional Director, Medical Education, Government of
Rajasthan, Jaipur, who has issued the order dated 08.08.2018
posting all five persons as Principal of Medical Colleges at
Dungapur, Bharatpur, Bhilwara, Churu and Pali. All of them in the
past have been working in different government medical colleges.
While Dr. K.C. Agarwal, who retired from the post of officiating
Principal & Controller, Medical College, Ajmer, on 31.12.2015, was
appointed as Principal, Medical College, Pali. Thus, obviously his
appointment has been made after he crossed the age of 62 years.
Similarly, Dr. Pramod Kumar Saraswat, mentioned at serial no.2 in
the order dated 08.08.2018, also retired from the post of the
Principal & Controller, Medical College, Ajmer, on 31.12.2013, vide
order dated 28.08.2012. If they can function as Principal of the
Medical College after attaining the age of 62 years, why the
petitioners could not do so. Obviously, the respondent State is
practicing a hostile discrimination against the petitioners, who are
similarly situated.
Mr. Rajendra Soni, the learned counsel for the petitioners,
submitted that while the Government may be competent to
prescribe the age of superannuation by the Rules but it can frame
such Rules only in conformity with the MCI Regulations. The MCI
Regulations permit the prescription of age of retirement up to 70
years but do not put any such embargo as has been provided in
the impugned amendment Notification. The third proviso to Rule
(16 of 55) [CW-7557/2018]
56 of the RSR, being in conflict with the MCI Regulations, is liable
to be struck down. It is argued that when the Notification dated
31.03.2018 was issued, the Government was itself not clear as to
which of the posts have to be treated as the administrative in
nature. Subsequently issued clarificatory order dated 17.04.2018
includes the posts of Principal, Vice Principal, Superintendent of
the Hospitals attached to the medical colleges but the
Superintendent of the single speciality was yet not included. This
by itself proves discrimination.
Mr. Rajendra Soni, the learned counsel, in support of his
arguments, has relied on the judgments of the Supreme Court in
Indravadan H Shah Vs. State of Gujarat and Another - AIR
1986 SC 1035, Union of India and Others Vs. N.S. Rathnam
and Sons - (2015) 10 SCC 681, Subramanian Swamy Vs.
Director, Central Bureau of Investigation and Another -
(2014) 8 SCC 682, State of Uttar Pradesh and Others Vs.
Dinesh Singh Chauhan - (2016) 9 SCC 749, Union of India
and Others Vs. Shah Goverdhan L. Kabra Teachers College -
JT 2002 (8) SC 269, Hiral P. Harsora and Others Vs. Kusum
Narottamdas Harsora and Others - AIR 2016 SC 4774, D.S.
Nakara and Others Vs. Union of India - (1983) 1 SCC 305,
Union of India and Others Vs. Atul Shukla and Others -
(2014) 10 SCC 432 and that of the Orissa High Court in Ashok
Kumar Mishra Vs. State of Orissa and Others in W.A. No.555
of 2011 decided on 14.03.2012 and that of this Court in Kailash
Chandra Harijan Vs. State of Rajasthan and Others - 2006
(2) RLW 1700.
(17 of 55) [CW-7557/2018]
Mr. Vinay Mathur, the learned counsel appearing on behalf of
the petitioner in Writ Petition No.11372/2018, has adopted the
arguments made by Mr. Mahendra Shah and Mr. Rajendra Kumar
Soni, the learned counsel for the petitioners in other connected
writ petitions.
Mr. Rajendra Prasad, the learned Additional Advocate General
appearing on behalf of the State, opposed the writ petitions and
submitted that most of the arguments of the petitioners are
apparently an outcome of deliberate misreading of various
provisions of the RSR and the MCI Regulations and they hold no
water if the provisions are correctly read and understood. The MCI
Regulations have been framed under the authority of Section 33 of
the Act of 1956, enacted by the Parliament deriving its authority
from Entry 66 List I (Union List) Schedule VII of the Constitution
of India. Entry 66 enumerates the subject of coordination and
determination of standards in the institutions for higher education
or research and scientific and technical institutions. As the title
would suggest, the MCI Regulations are aimed at prescribing
minimum qualifications for appointment as a medical teacher and
that would be clear from reading of Clauses 2 and 3 of the MCI
Regulations. The main thrust of the petitioners' argument is on the
Clause 1A of the Schedule-I of the MCI Regulations and Entry-1 in
Table-1 of the said Regulations. Schedule-I provides that every
appointing authority before making an appointment to a teaching
post in the medical college or institution shall observe the norms
prescribed therein. The language thus leaves no doubt that the
object is to prescribe qualifications of the Medical Teachers but it
has no bearing on conditions of service relating to superannuation.
(18 of 55) [CW-7557/2018]
In fact, the caption of Table-1 "Requirements of academic
qualifications teaching and research experience" leaves no manner
of doubt that the Table-1 does not have even a remote
relationship with the prescription of age of retirement or with the
creation of a cadre of administrative positions of the Medical
Colleges, like Principal, Dean, Director, etc., in the MCI Regulations
and not under the Rules of 1962. It is submitted that creation of
service, encadrement of posts, prescribing conditions of service
including age of retirement can be done only by an employer,
which, in this case, is the State of Rajasthan, by way of framing of
the Rules exercising the powers vested under Article 309 of the
Constitution of India. These Rules are, however, required to be
consistent with the MCI Regulations in the areas where the
Medical Council of India is entitled to legislate or direct. The
Medical Council of India can, by no stretch of imagination, be said
to be an employer. It only frames guidelines or norms to be
followed by the employers of the Medical Teachers. Thus the whole
idea of encadrement of the administrative posts by the MCI
Regulations is patently baseless and misconceived and by the
same logic, therefore, the argument of the petitioners that they
continue to retain the lien on the administrative posts till their
attaining the age of superannuation also holds no water.
It is argued that the plea of reduction in rank on these counts
also cannot be sustained. Clause 1A of Schedule-I of the MCI
Regulations merely prescribes the upper age limit up to which a
person can be allowed to continue in service or granted extension
or re-employment against the post of Principal or Dean or Director,
as the case may be, which age is 70 years. It does not per se
(19 of 55) [CW-7557/2018]
mandates that in all eventualities the age of retirement should be
prescribed as 70 years by the employer. "Granted extension or re-
employed in service" are the post-retirement events, and that is
why the first proviso to Rule 56 makes the Rule 56 non-applicable
to these situations while prescribing the age of superannuation. In
either of the eventualities, there would be clear break of
employment on attaining the age of retirement prescribed under
Rule 56 of RSR. It is thus clear that extension of age of
superannuation up to 65 years with a stipulation, does not violate
any of the MCI Regulations. Moreover, the appointment on
administrative posts in Government Medical Colleges is not
governed by the Rajasthan Medical Services (Collegiate Branch)
Rules, 1962. The incumbents on such posts are selected by a
process and posted in these administrative positions, yet they
continue to hold the lien upon the posts on which they have been
substantively appointed. The Rules of 1962 neither deal with the
age of superannuation nor could they have dealt with such
analogous subject. Reliance in support of this argument is placed
on the judgment of the Allahabad High Court in Professor
Chandra Prakash Jha & Others Vs. V.C., Allahabad
University and Others - 2000 Lab. I.C. 3152.
The learned Additional Advocate General submitted that the
petitioners have filed on record the copies of the note-sheet
dealing with the issue with regard to the amendment in the Rules.
The observations made in the note-sheet by any of the officers are
not binding by the decision and shall have no bearing upon the
validity of the final decision. Moreover, the petitioners are
deliberately misinterpreting not only the contents of the note-
(20 of 55) [CW-7557/2018]
sheet but also the notification of the Government of India dated
05.01.2018 reproduced therein. The State Government decided to
establish eight new medical colleges under the Scheme specified
by the Central Government and for their autonomous operations,
a Society under the Rajasthan Societies Registration Act, 1958,
(for short, 'the Act of 1958') has been got registered in the name
of the Raj-MES. These medical colleges have been established for
the purpose of expansion of medical education and health services
in the State and, therefore, the districts and the referral hospitals
have been upgraded. The Government by the Resolution dated
20.02.2017 approved various proposals placed before it and
obviously the order dated 18.04.2017 was issued, wherein it was
decided that the properties, equipment and staff of such kind of
hospitals would be required to be transferred to the Raj-MES as
per the provisions of law and the Doctors, Para Medical, Nursing
and other staff will be transferred on deputation. It was also
decided that the finance/budget for the staff will be given by the
Government as grant under the process of gap funding. In course
of time, the Raj-MES will be required to employ its own faculty
and staff who will be employees of the Raj-MES and the Raj-MES
has been permitted to fix their salary and allowances as per the
market rates. It is owing to that order, the Raj-MES framed its
own service rules, namely, the Rules of 2017 and sent to the
Government for their approval. The necessity of this arose
because of the Rajasthan (Regulation of Appointments to Public
Services and Rationalization of Staff) Act, 1999 (for short, 'the Act
of 1999'), which mandates the approval of competent authority
even in the cases of a society registered under any law receiving
(21 of 55) [CW-7557/2018]
funds from the State Government. It is in this background that for
establishment of new medical colleges, initial appointments of
medical teachers and other administrative officers have been
made by way of transfer on deputation and re-employment, etc.
While the transfers on deputation have been made taking into
account the need of these new medical colleges from the existing
medical colleges where such teachers were posted in excess. As
per Rule 6(3) of the Rules of 2017, the governing body of the
society is entitled to fill up posts on deputation and the Rajasthan
Service Rules permits deputation in the society under Chapter XIII
of the Rules. This became necessary as the regular
recruitments/appointments were likely to take time. There was
thus nothing illegal in the appointments on deputation or by re-
employment from retired employees of the Government made by
the Raj-MES, which was necessary for the purpose of initial
establishment of the colleges.
It is submitted that the Jhalawar Medical College has been
established by the Jhalawar Hospital and Medical College Society,
Jhalawar, whereas eight new medical colleges are being
established through the Raj-MES in different places in the State.
Rule 10 of the Rules of 2017, which also relates to the age for
appointment, postulates that a candidate for direct recruitment
(teaching staff) to the post(s) in the service must have attained
the minimum age of 20 years and the upper age limit shall not
exceed the age as prescribed by the MCI. The documents clearly
show that those above the age of 62 or 65 years have been re-
employed after their retirement and those in service, who have
been posted from Government Medical Colleges have been sent
(22 of 55) [CW-7557/2018]
there on deputation. The bogie of discrimination vis-a-vis the
private medical colleges is wholly unfounded. The argument that
these medical colleges should be treated as department of the
government has absolutely no legal basis. Even though they have
been established by the government and the society has certain
government officers as its members but it will be a body
completely different from the government to be governed as per
the norms fixed by the society itself. Even if these colleges are
treated to be the instrumentality of the State, they cannot be held
to be the departments of the Government. The services of the
society can by no stretch of imagination be treated to be the
Medical Service (Collegiate Branch) created under Article 309 of
the Constitution of India. Both being different services under
different set of rules and legal establishments, are neither
comparable nor can be said to be the same. The employees under
the two would form different classes.
The learned Additional Advocate General submitted that the
argument of discrimination raised by the petitioners is wholly
unfounded as the proviso to Rule 56 itself creates a class with
regard to the Medical Teachers, who have crossed the age of 62
years and those who have not. The general age of retirement for
every government servant under Rule 56 of the RSR is 60 years.
Second proviso to Rule 56 was inserted on 31.03.2016 taking into
account the critical need of the medical services and requirement
of public interest, thereby enhancing the age of retirement of
both, medical officers and medical teachers from 60 to 62 years.
However, the Government having further felt the acute shortage of
medical teachers and doctors, having experience for medical
(23 of 55) [CW-7557/2018]
education as well as public health service in the State, decided in
public interest that those in collegiate branch should be retained in
service upto 65 years. It was with that end view that the third
proviso was inserted in order to ensure that such persons devote
their full time to the work for which the age of retirement has
been enhanced. It was further decided that they will be placed
only on non-administrative positions only. Therefore, the very fact
that the age of retirement in respect of the medical officers and
medical teachers holding MBBS degree has been extended to 65
years, clearly indicates that the enhancement is in the nature of
compulsory retention upto this age for public benefit. Moreover
their retention only for non-administrative purpose is further
indicative of the need for which the third proviso has been
substituted. This shows the purpose and the legislative intent of
the amendment in clear terms to the effect that the serving
medical teachers are to be retained for enhanced period of three
years only for non-administrative purposes.
The learned Additional Advocate General submitted that the
purpose of amendment is not for conferment of benefit of
enhanced age only on one category of employees but it is for
imposition of public duty of medical education and public health
services for additional period. It is settled law that the right to
equality permits reasonable classification based on twin tests of
intelligible differentia and nexus with the object sought to be
achieved. The impugned amendment fully satisfies this
requirement if viewed in the light of the principles laid down by
the constitution bench of the Supreme Court in Ram Krishna
Dalmia v. Shri Justice S.R. Tendolkar & Ors. - AIR 1958 SC
(24 of 55) [CW-7557/2018]
538. The provision applies across the board to all employees in
service. All are permitted to continue to work on the
administrative positions only upto 62 years and none is permitted
thereafter. The provision therefore makes no discrimination. An
employee cannot be said to be discriminated qua himself simply
because the service condition changes on attaining a particular
age or on having served for a particular length. The learned
Additional Advocate General tried to explain this argument by
giving example that the employees serving on the same post and
discharging the same duties are yet paid different salaries having
put in different length of service, i.e., 9, 18 and 27 years.
However, this is no classification as every employee is similarly
treated on putting the same length of service. Thus the argument
of discrimination is wholly unfounded.
Mr. Rajendra Prasad, the learned Additional Advocate
General, submitted that the petitioners are not entitled to
challenge only one part of the amended provision and taking
advantage of another part. The legislature clearly intended to
enhance the age of retirement only for non-administrative
positions and not otherwise. In such a situation, the striking down
of that condition only would clearly be an act of fresh legislation
by the judicial process, which is not the scope of the judicial
review. It is submitted that it is the merits of the case to
adjudicate whether the entire amended provision remains or it
goes. The reliance by the petitioners on D.S. Nakara's case,
supra, is wholly misconceived, because the Rules under challenge
in that case were extending benefits to the same category or class
of persons differently. However, in subsequent judgments, the
(25 of 55) [CW-7557/2018]
Supreme Court has consistently held that the government is
entitled to fix cut off dates even in the matter of extension of
benefits looking to its financial position and other justifiable
factors. It is argued that the age of superannuation is a matter of
prescription by statute. It is not the case of the petitioners that
the authority enacting such Rule is either not competent or not
following the constitutional mandate. In absence thereof, a
provision created with condition simply cannot be faulted. Relying
on the judgment of the Supreme Court in Anant Mills Co. Ltd.
Vs. State of Gujarat - AIR 1975 SC 1234, the learned
Additional Advocate General submitted that the matters relating to
creation of right to appeal with condition of pre-deposits have
been upheld by the Supreme Court therein. The petitioners even
otherwise have not been able to show that the impugned provision
in any manner is arbitrary and unreasonable. There is no question
of the petitioners being reduced in rank, much less by way of
punishment. The petitioners substantively held the post of Medical
Teachers under the Rules of 1962 and they shall continue to retain
it till their retirement. The administrative positions, they held on
selection, are the additional duties assigned on fulfillment of
certain requirements and, even as per the existing rules, they
cannot hold them beyond the age of 62 years. The powers,
privileges etc., attached to the administrative positions are
available only until the law permits holding of such positions and
there is thus no case of any vested right being withdrawn. It is,
therefore, prayed that the writ petitions be dismissed.
Mr. Ajeet Kumar Sharma, the learned Senior Counsel
appearing on behalf of the interveners, namely, Dr. R.K. Solanki
(26 of 55) [CW-7557/2018]
and Dr. Dhananjay Agarwal, opposed the writ petitions and
submitted that the petitioners have not challenged the validity of
the first part of the impugned notification whereby the age of
superannuation in respect of MBBS degree holder Medical
Teachers of the Rajasthan Medical Services (Collegiate Branch)
has been enhanced from 62 to 65 years. In absence of any
challenge to the first part of the impugned notification dated
30.03.2018, it is not open to the petitioners to challenge only the
latter part where-under the services of such Medical Teachers are
to be placed on the non-administrative positions. The petitioners
have no right to question the policy decision of the State in the
matter of utilization of services after enhancement in the age of
superannuation from 62 to 65 years. The utilization of services of
medical teachers is entirely and exclusively within the domain of
the State Government as employer of such medical teachers. The
petitioners are duty bound to render their services as medical
teachers at the places of their posting and they cannot claim that
while availing the benefit of enhanced age of superannuation up to
65 years under the impugned Notification dated 30.03.2018, their
services cannot be placed in non-administrative positions. The
proviso introduced by the impugned Notification is a composite
one, which intends to enhance the age of superannuation of the
medical teachers keeping in view their shortage and dearth and
faculty for super-speciality courses coupled with interest of
medical students and public at large coming for treatment to the
Government hospitals in the State of Rajasthan. The action of the
State in incorporating the condition for utilizing the services of the
medical teachers in the non-administrative positions only, can
(27 of 55) [CW-7557/2018]
neither be termed as arbitrary nor irrational nor even
unreasonable. The challenge to the impugned Notification is thus
wholly misconceived.
The learned Senior Counsel further argued that the petitioner
Dr. U.S. Agarwal is holding the post of the Principal and the writ
petition on his behalf appears to have been filed with the sole
object of retaining the post of Principal while taking benefit of the
enhanced age of superannuation of 65 years. The impugned
Notification is confined to enhanced age of superannuation of
Medical Teachers of Rajasthan Medical Services (Collegiate
Branch) and the highest post encadered in the Schedule-I
appended to the Rules of 1962 is that of Professor and the post of
Principal is not encadered under the said Rules. The post of
Principal has been encadered under the Rajasthan Medical &
Health Service Rules, 1963. It is specifically provided in the
impugned Notification dated 30.03.2018 that the age of
superannuation for member of the said service shall remain 62
years. There is no challenge to this part of the said Notification.
Thus, the direction sought by the petitioners Dr. U.S. Agarwal and
Dr. S.K. Jain allowing them to continue to hold the posts of
Principal and Additional Principal, respectively, till the age of their
superannuation, i.e., 65 years with all consequential benefits, is
wholly unfounded and untenable. The learned Senior Counsel also
argued that the Government of India, while making amendment in
Rule 56 of the Fundamental Rules, 1922, pertaining to
enhancement in the age of superannuation for Medical Officers,
Specialists, Doctors etc., in the services of the Central
Government, Central Armed Police Forces and Assam Rifles, have
(28 of 55) [CW-7557/2018]
also stipulated in the Notification dated 05.01.2018 that except
the Doctors in Central Armed Police Forces and Assam Rifle, all
other Medical Officers/Specialists/Doctors shall hold the
administrative post till attaining the age of 62 years and,
thereafter, their services shall be placed in non-administrative
positions. It is submitted that the issue with regard to the junior
person, holding an administrative post of Head of Department,
writing the APARs of Senior Professors, has already been clarified
by the State vide order dated 02.08.2016 that for filling the APARs
of Professors, senior to Head of Department, the channels
specified in earlier order dated 13.05.2003 shall be followed and
thus the grievance of the petitioners is not tenable.
The learned Senior Counsel submitted that under Section 33
of the Indian Medical Council Act, 1956, the Council has no power
to prescribe the conditions of service of Government servants
including the Medical Teachers working in Government hospitals.
The power to prescribe the conditions of service vests in the
Governor of the Rajasthan State and the provision relating to age
of superannuation is incorporated in Rule 56 of the RSR framed by
the Governor of Rajasthan in exercise of powers under proviso to
Article 309 of the Constitution. That apart, the age of
superannuation for the post of Principal stipulated by the Medical
Council of India is in the nature of guidelines and are not binding
on the State Government. There is no mandatory direction given
by the Medical Council of India that the Medical Teachers holding
administrative posts including that of Principal, cannot be retired
before the age of 70 years. The reference to the enhanced age of
superannuation in the Medical Colleges run by the Raj-MES
(29 of 55) [CW-7557/2018]
constituted by the State, is misconceived inasmuch as there is
material difference between the State service and the service
rendered by the persons employed by the Raj-MES, who have
their own constitution and set of service Rules.
We have given our anxious considerations to rival
submissions and perused the material on record.
We would at the outset begin with observing that all the
petitioners are the members of the medical service (collegiate
branch), defined in Rule 3(g) of the Rules of 1962, and, as such,
they are holding the posts of Professors on substantive basis with
the respondents. Rule 3(k) of the Rules of 1962, defines the term
"Substantive Appointment" to mean an appointment made under
the provisions of these Rules to a substantive vacancy after due
selection by any of the methods of recruitment prescribed therein.
The petitioners have sought to build a case that since the posts of
Principal and Dean, etc. are not included in the Schedule
appended to the Rules of 1962, but they find reference in Table-1
of Schedule-I of the MCI Regulations, those posts are encadered in
MCI Regulations. Therefore, prescription of age of retirement by
the appointing authority has to be in conformity with the age
specified in Clause 1A of the Schedule-I of the MCI Regulations.
One wonders whether by mere reason of the reference of the
posts of Principal and Dean in Table-1 of the Schedule-I of the MCI
Regulations, could it be said that these posts are encadered in the
MCI Regulations. In our view such an argument is too specious to
be accepted. The posts of Principal, Dean, etc. are the selection
posts and such selections have to be made only from amongst the
persons who are substantively holding the post of Professors. The
(30 of 55) [CW-7557/2018]
selection of the petitioners on the post of Principal or Dean, etc.,
does not in any manner result in discontinuation of their lien from
the substantive post of Professor. In fact, they have been
appointed on these posts only because they were treated eligible
for such appointment by virtue of their substantive appointment
as Professors. Even after selection on these administrative posts,
they continue to be the members of service under the Rules of
1962 on the post of Professor encadered therein.
This now takes us to the next argument that the MCI
Regulations, especially Clause 1A of the Schedule-I appended
thereto, which prescribes the upper age limit of 70 years, are
binding on the Government and even if the respondents were to
enhance the age of retirement from 62 to 65 years, they could not
do so with the rider on continuation of the petitioners only on the
non-administrative posts. Decision of this question would lie in the
answer to the question whether the MCI Regulations, in so far as
the question of enhancement of the age of retirement, with or
without condition, is concerned, are binding on the appointing
authority, which in this case is the State of Rajasthan. It is trite
that the State has a right by virtue of Entry 25 List III (State List)
Schedule VII of the Constitution of India, to control on the subject
of education, including technical education, medical education and
universities, subject to the provisions of Entries 63, 64, 65 and 66
of List I; but while doing so it cannot impinge on higher education
which subject exclusively lies within the domain of the Central
Government. The Central Government, by virtue of Entry 66 List I
(Union List) Schedule VII of the Constitution of India, wields the
power of co-ordination and determination of standards in the
(31 of 55) [CW-7557/2018]
institutions for higher education or research and scientific and
technical institutions. The subject "co-ordination and
determination of standards in the institutions for higher education
or research and scientific and technical institutions" is the domain
of the Parliament. There can be therefore no quarrel with the
proposition that both the State and the Center would have the
power to legislate on the subject of education including the
medical education, but to the extent the laws made by the State
legislation are in conflict with those of the Central legislation,
former will have to give a way to the latter and would be
inoperative to that extent unless they are saved by Article 254(2)
of the Constitution. Whether or not, therefore, the State law
encroaches on Central legislation, will have to be determined with
reference to contextual facts if it any manner encroaches upon the
power of the Center to make laws for "co-ordination and
determination of standards in institutions for higher education".
The age of retirement is one of the essential conditions of service
and, therefore, can either be prescribed by way of Rules framed
under Article 309 of the Constitution of India or by mutual
contract between the employer and the employee. It is up to the
employer or the appointing authority to regulate the age of
superannuation as per the stipulation made in the Rules. An
employee has no fundamental right to remain in service beyond
the terms of the Rules. The MCI Regulations merely lay down
guidelines that a medical teacher can be retained in service upto
the age of 70 years. But that does not mean that age of
retirement of a medical teacher has to be necessarily kept as 70
years.
(32 of 55) [CW-7557/2018]
We may in this connection usefully refer to the observations
of the Allahabad High Court in Professor Chandra Prakash Jha
& Others, supra, made in para 10 of the report:-
"10. ................It is settled law that delegated legislation
is as binding as the parent legislation unless there, is
conflict between the two. We do not find any conflict. In
fact Sections 49(d) and (e) of the Act states that the
statutes of the Universities can provide the terms and
conditions of service of a person appointed to a post
under the University. In our opinion Sections 49(d) and
(e) includes the power to fix the age of superannuation
of the University teachers. Since the age of
superannuation has been fixed by Statute 16, it can
only be altered by amending the Statute. In the system
of administration we have adopted from the British, the
executive is subordinate to the legislature. Hence in our
opinion the Central Government has no power to issue
any executive order abrogating or modifying any
provision in the U.P. State University Act or the statutes
made thereunder. In our opinion if any direction of the
U.G.C. had not been complied with by the University
concerned, the U.G.C. can withhold or reduce the
financial assistance given to that university, but neither
the Central Government nor the U.G.C. has any power
to amend the Act or statute. Under Section 50(1) the
State Government could amend the first statute made
by the State Government at any time upto 31-12-1990,
and the Executive Council under Section 50(2) can
amend the Statute, thereafter. Under Section 50(4) the
amendment in the statute has to be submitted to the
Chancellor who may assent to it or withhold his assent
therefrom or remit it to the Executive Council for
further consideration. Hence any amendment to
Statute 1624 changing the age of superannuation of
University teachers can only be done in accordance
with Section 50 and by the authority mentioned in
Section 50. No such amendment can be made by any
other authority or, in any other manner. ............"
The Supreme Court in Jagdish Prasad Sharma Vs. State
of Bihar - (2013) 8 SCC 633, dealt with the question of primacy
of the laws framed by the State Government regulating service
conditions of teachers and other staff of State universities/colleges
vis-a-vis regulations framed by the University Grants Commission.
The Bihar Legislature passed the Bihar State Universities
(Amendment) Act substituting Section 67 of the Bihar State
(33 of 55) [CW-7557/2018]
Universities Act, enhancing the age of superannuation to 62 years.
Similarly, Section 64(a) of the Patna University Act was also
amended on similar basis. Writ petitions were filed by the teachers
in the Bihar, which were allowed by the Single Judge. However,
LPAs filed thereagainst were allowed by the judgment of the
Division Bench of the High Court and that came to be challenged
before the Supreme Court. The stand of the State of Bihar before
the Supreme Court was that the right to alter terms and
conditions of the service of the employees of the State universities
and colleges was within the domain of the State Government and
till such time, it decided to adopt the Scheme of the UGC, the
same would have no application to teachers and other staff of
other educational institutions of the State. The Supreme Court
held that the final decision to enhance the age of superannuation
of teachers within a particular State would be that of the State
itself. The right of the Commission to frame Regulations having
the force of law is admitted. However, the State Governments are
also entitled to legislate on matters relating to education under
Entry 25 of List III. So long as the State legislation did not
encroach upon the jurisdiction of Parliament, the State legislation
would obviously have primacy over any other law, held the
Supreme Court.
Coming back to the facts of the case in hand, as per the
prescription that was originally made in Rule 56 of the RSR, the
petitioners could continue in the service till 60 years. This was
subject to an exception given in the first proviso to Rule 56 that
this age of retirement shall not be applicable in the case of a
government servants who are either re-employed or granted
(34 of 55) [CW-7557/2018]
extension after attaining the age of superannuation. But the State
Government faced with the scarcity and dearth of both, the
medical teachers in the medical colleges and the hospitals
attached thereto and also the medical officers in the Government
hospitals and other dispensaries, introduced second proviso to
Rule 56 of the Rajasthan Service Rules, 1951 by way of
amendment vide Notification dated 31.03.2016 which uniformly
enhanced the age of superannuation for both the categories upto
the age of 62 years. The Government, there realizing the acute
shortage of medical teachers in the medical colleges and the
hospitals attached thereto for providing super-speciality treatment
to the public at large, decided to further enhance the age of
retirement of the medical teachers from 62 to 65 years by
introducing the third proviso to Rule 56 of the RSR vide
notification dated 30.03.2018 but with a rider that they shall be
placed only on the non-administrative positions for this extended
period of service between 62 to 65 years, meaning thereby that
their services would be utilized only for the purpose of teaching
the medical students in the medical colleges and for the super-
specialized treatment of patients in the hospitals attached thereto.
Increase in the age of retirement has been introduced by this
special provision to ensure continued availability of sufficient
number of medical teachers in the higher education to the
students in the medical colleges and the super-specialized
treatment to the patients in the hospitals attached thereto. This
has, therefore, come as a composite package to such medical
teachers who have attained the age of 62 years. They cannot be
allowed to contend that this creates any discrimination qua them
(35 of 55) [CW-7557/2018]
as it uniformly applies to all falling in this category. The purpose of
their continued retention in the service for three extra years is
thus essentially non-administrative in nature and by striking down
the latter part of the proviso, this would take away the very soul
of the proviso as even when they are no longer in service, there
would be many takers for the administrative posts of Principals,
Deans, etc.
The contention that the Chief Secretary to the State
Government in the note-sheet had expressed certain reservations
for the proposed amendment, which eventually went through and
resulted in the issuance of the Notification amending the Rules is
noted to be rejected. It is trite that the notings made by the
officers in the Government files at different levels are only
tentative expression of opinion by them in the process of arriving
at the final decision. What is material for the purpose of outside
word is the final decision such internal discussion culminated into.
We may in this connection refer to certain judgments of the
Supreme Court.
The Supreme Court in Shanti Sports Club Vs. Union of
India, supra, held as under:-
"43. A noting recorded in the file is merely a noting
simpliciter and nothing more. It merely represents
expression of opinion by the particular individual. By no
stretch of imagination, such noting can be treated as a
decision of the Government. Even if the competent
authority records its opinion in the file on the merits of
the matter under consideration, the same cannot be
termed as a decision of the Government unless it is
sanctified and acted upon by issuing an order in
accordance with Articles 77(1) and (2) or Articles
166(1) and (2). The noting in the file or even a decision
gets culminated into an order affecting right of the
parties only when it is expressed in the name of the
President or the Governor, as the case may be, and
authenticated in the manner provided in Article 77(2)
(36 of 55) [CW-7557/2018]
or Article 166 (2). A noting or even a decision recorded
in the file can always be reviewed/reversed/overruled
or overturned and the court cannot take cognizance of
the earlier noting or decision for exercise of the power
of judicial review."
Similarly, while dealing with the issue, the Supreme Court in
Sethi Auto Service Station Vs. DDA, supra, held as under:-
"14. It is trite to state that notings in a departmental
file do not have the sanction of law to be an effective
order. A noting by an officer is an expression of his
viewpoint on the subject. It is no more than an opinion
by an officer for internal use and consideration of the
other officials of the department and for the benefit of
the final decision-making authority. Needless to add
that internal notings are not meant for outside
exposure. Notings in the file culminate into an
executable order, affecting the rights of the parties,
only when it reaches the final decision-making
authority in the department, gets his approval and the
final order is communicated to the person concerned."
In Jasbir Singh Chhabra v. State of Punjab, supra, the
Supreme Court held as under:-
"35...... However, the final decision is required to be
taken by the designated authority keeping in view the
larger public interest. The notings recorded in the files
cannot be made basis for recording a finding that the
ultimate decision taken by the Government is tainted
by mala fides or is influenced by extraneous
considerations....."
With regard to the argument of discrimination based on the
appointment of the Professors who retired from the Government
service, on the post of Principal with the Medical Colleges run by
the Raj-MES, these eight new medical colleges have been
established under the Scheme sponsored by the Central
Government by constituting the Raj-MES, which has been
registered as a Society under the Act of 1958. This is intended to
ensure autonomous operation through the Society with the object
of providing medical education and to establish, operate, maintain,
manage and recognize "medical, dental, para-medical colleges".
The respondent-State has clarified that the Governing Board and
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the Executive Committee of the Society have been mentioned in
the "Sangh Vidhan-Patra" of the Society, and the bye laws of the
Society have been duly registered. The funds of the Society are to
be generated out of subscriptions, fees, aid/help of the
Government. The State Cabinet by the resolution dated
24.02.2017 approved the proposal to upgrade and establish these
new medical colleges for the purpose of extension of the Medical
Education and the Health Services in the State, with the
properties, equipment and staff thereof being transferred to the
aforesaid Society as per the provisions of law and the Doctors,
Paramedical, Nursing and other staff will be transferred on
deputation. The Government decided to provide grant-in-aid to the
Society, which would be required to employ its own faculty and
staff, who will be employee of the Society and the Society has
been permitted to fix their salary and allowances as per the
market rates. The respondents, in this behalf, have placed on
record the Government order dated 18.04.2017, which mentions
that the declaration to this effect in the Budget Speech 2014-15
was made by the Chief Minister of the State and thereafter again
the Financial Year 2016-17, on the floor of the Assembly. As for
the Medical Teachers and other staff of the medical colleges as
also the S.M.S. Medical College transferred to the medical colleges
run by the Raj-MES, it should be noted that the Raj-MES has
framed its own rules with regard to conditions of service of its
employees, namely, the Rules of 2017. As per provisions of Rule
6(3) of the said Rules, the governing body of the Society is
entitled to fill up the posts on deputation and the Rajasthan
Service Rules permit deputation in the Society under Chapter XIII
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of the Rules. There was nothing illegal about the Society having
prior approval of the Government of framing the aforesaid Rules of
2017 as the Society registered under the Act of 1958 has been
receiving the funds from the State Government as per the
provisions of the Act of 1999.
We are reminded of the rule of caution to be exercised by
this court while judging constitutional validity or any
statute/legislation/subordinate legislation. We may in this
connection usefully refer to the observations made by the
Supreme Court in State of Bihar and Others Vs. Bihar
Distillery Ltd. & Others - (1997) 2 SCC 453, wherein the law
was succinctly stated as to the approach which the Court should
adopt while examining the validity/constitutionality of a legislation
in para 17 of the report which reads thus:-
"The approach of the court, while examining the
challenge to the constitutionality of an enactment, is to
start with the presumption of constitutionality. The
Court should to try to sustain its validity to the extent
possible. It should strike down the enactment only
when it is not possible to sustain it. The court should
not approach the enactment with a view to pick holes
or to search for defects of drafting, much less
inexactitude of language employed. Indeed any such
defects of drafting should be ironed out as part of the
attempt to sustain the validity/constitutionality of the
enactment. After all, an Act made by the legislature
represents the will of the people and that cannot be
lightly interfered with. The unconstitutionality must be
plainly and clearly established before an enactment is
declared as void. The same approach holds good while
ascertaining the intent and purpose of an enactment or
its scope and application."
The Supreme Court in later judgment in Government of
Andhra Pradesh Vs. P. Laxmi Devi - (2008) SCC 720, also
evolved a rule of caution for exercise of such jurisdiction by the
courts stating that the court should exercise judicial restraint while
(39 of 55) [CW-7557/2018]
judging the constitutional validity of the statute or even that of a
delegated legislation and it is only when there is clear violation of
a constitutional provision beyond reasonable doubt that the court
should declare a provision to be unconstitutional. The Supreme
Court therein further observed that even if two views are possible,
one making the statute constitutional and the other making it
unconstitutional, the former view must prevail and the court must
make efforts to uphold the constitutional validity of a statute,
unlike a policy decision, where the executive decision could be
rendered invalid on the ground of mala fides, unreasonableness
and arbitrariness alone.
The Supreme Court in one of the earliest constitution bench
judgment in Budhan Choudhary and Others Vs. State of Bihar
- AIR 1955 SC 191, laid down the parameters, on the
touchstone of which the reasonableness of the classification with
reference to Article 14 of the Constitution of India has to be
tested, in the following terms:-
"5. The provisions of Article 14 of the Constitution have
come up for discussion before this Court in a number of
cases., namely, Chiranjit Lal Chowdhuri v. The Union of
India - [1950] S.C.R. 869, The State of Bombay v. F.N.
Balsara - [1951] S.C.R. 682, The State of West Bengal
v. Anwwar Ali Sarkar - [1952] S.C.R. 284, Kathi Raning
Rawat v. The State of Saurashtra - [1952] S.C.R. 435,
Lachmandas Kewalram Ahuja v.The State of Bombay -
[1952] S-C R. 710, Qasim Razvi v. The State of
Hyderabad - [1953] S.C.R. 581, and Habeeb Mohamad
v. The State of Hyderabad - [1953] S.C.R. 661. It is,
therefore, not necessary to enter upon any lengthy
discussion as to the meaning, scope and effect of the
article in question. It is now well-established that while
Article 14 forbids class legislation, it does not forbid
reasonable classification for the purposes of legislation.
In order, however, to pass the test of permissible
classification two conditions must be fulfilled, namely,
(i) that the classification must be founded on an
intelligible differentia which distinguishes persons or
things that are grouped together from others left out of
(40 of 55) [CW-7557/2018]
the group and (ii) that differentia must have a rational
relation to the object sought to be achieved by the
statute in question. The classification may be founded
on different bases; namely, geographical, or according
to objects or occupations or the like. What is necessary
is that there must be a nexus between the basis of
classification and the object of the Act under
consideration. It is also well established by the
decisions of this Court that Article 14 condemns
discrimination not only by a substantive law but also by
a law of procedure. The contention now put forward as
to the invalidity of the trial of the appellants has,
therefore to be tested in the light of the principles so
laid down in the decisions of this Court."
In Shri Ram Krishna Dalmia v. Shri Justice S.R.
Tendolkar & Ors. - AIR 1958 SC 538 the Supreme Court on the
aspect of reasonable classification again observed thus:-
"It is now well established that while Article 14 forbids
class legislation, it does not forbid reasonable
classification for the purposes of legislation. In order,
however, to pass the test of permissible classification
two conditions must be fulfilled namely (1) that the
classification must be founded on an intelligible
differentia which distinguishes persons or things that
are grouped together from others left out of the group
and (ii) that differentia must have a rational relation to
the object sought to be achieved by the statute in
question. The classification may be founded on different
bases, namely, geographical, or according to objects or
occupation or the like. What is necessary if that there
must be a nexus between the basis of classification and
the object of the Act under consideration."
The Supreme Court in Lachhman Das Vs. State of Punjab
- AIR 1963 SC 222, while reiterating the test to be applied for
examining the vires of an Act on the touchstone of Article 14
sounded a note of caution that overemphasis on the 'doctrine of
classification' may gradually and imperceptibly deprive the Article
of its glorious content and observed as under:-
".....the doctrine of classification is only a subsidiary rule
evolved by courts to give a practical content to the said
doctrine. Overemphasis on the doctrine of classification
or an anxious and sustained attempt to discover some
basis for classification may gradually and imperceptibly
deprive the article of its glorious content. That process
(41 of 55) [CW-7557/2018]
would inevitably end in substituting the doctrine of
classification for the doctrine of equality: the
fundamental right to equality before the law and equal
protection of the laws may be replaced by the doctrine
of classification."
In order to substantiate the violation of Article 14 of the
Constitution, the element of discrimination and arbitrariness has
to be brought out in clear terms. The courts have to keep in mind
that by the process of classification, the State has the power of
determining who should be regarded as a class for the purposes of
legislation and in relation to law enacted on a particular subject.
The power, no doubt, to some degree is likely to produce some
inequality but if a law deals with liberties of a number of
individuals or well-defined classes, it is not open to the charge of
denial of equal protection on the ground that has no application to
other persons. Classification thus means segregation in classes
which have a systematic relation usually found in common
properties and characteristics. It postulates a rational basis and
does not mean herding together of certain persons and classes
arbitrarily. The differentia which is the basis of the classification
and the object of the legislation, are two distinct things. What is
necessary is that there must be a nexus between them. The basis
of testing the constitutionality, particularly on the ground of
discrimination, should not be made by raising a presumption that
the authorities are acting in an arbitrary manner. One of the
known concepts of the constitutional interpretation is that the
legislature cannot be expected to carve out classification which
may be so scientifically perfect or logically complete as may
satisfy the expectations of all the concerned. The courts would
respect the classification dictated by the wisdom of the legislature
(42 of 55) [CW-7557/2018]
and shall interfere only on being convinced that the classification
would result in pronounced inequality or palpable arbitrariness
tested on the touchstone of Article 14 of the Constitution.
The Supreme Court in Welfare Association, A.R.P.,
Maharashtra and Another Vs. Ranjit P. Gohil and Others -
(2003) 9 SCC 358, held in para 60 of the report as under:-
"Article 14 of the Constitution permits reasonable
classification for the purpose of legislation and prohibits
class legislation. A legislation intended to apply or
benefit a "well-defined class" is not open to challenge
by reference to Article 14 of the Constitution on the
ground that the same does not extend a similar benefit
or protection to other persons. Permissible classification
must satisfy the twin tests, namely, (i) the classification
must be founded on an intelligible differential, which
distinguishes persons or things grouped together from
others left out of the class, and (ii) such differentia
must have a rational relation with the object sought to
be achieved by the legislation. It is difficult to expect
the Legislature carving out a classification which may
be scientifically perfect or logically complete or which
may satisfy the expectations of all concerned, still the
court would respect the classification dictated by the
wisdom of Legislature and shall interfere only on being
convinced that the classification would result in
pronounced inequality or palpable arbitrariness on the
touchstone of Article 14."
We may in this connection also refer to useful observations
made by the Supreme Court in Namit Sharma Vs. Union of
India - (2013) 1 SCC 745, which read thus:-
"43. The rule of equality or equal protection does not
require that a State must choose between attacking
every aspect of a problem or not attacking the problem
at all, and particularly with respect to social welfare
programme. So long as the line drawn, by the State is
rationally supportable, the Courts will not interpose
their judgment as to the appropriate stopping point. A
statute is not invalid because it might have gone further
than it did, since the legislature need not strike at all
evils at the same time and may address itself to the
phase of the problem which seemed most acute to the
legislative mind. A classification based on experience
was a reasonable classification, and that it had a
rational nexus to the object thereof and to hold
(43 of 55) [CW-7557/2018]
otherwise would be detrimental to the interest of the
service itself. This opinion was taken by this Court in
the case of State of UP & Ors. v. J.P. Chaurasia & Ors -
(1989) 1 SCC 121. Classification on the basis of
educational qualifications made with a view to achieve
administrative efficiency cannot be said to rest on any
fortuitous circumstances and one has always to bear in
mind the facts and circumstances of the case in order
to judge the validity of a classification. In the case of
State of Jammu & Kashmir v. Sh. Triloki Nath Khosa &
Ors. - (1974) 1 SCC 19, it was noted that intelligible
differentia and rational nexus are the twin tests of
reasonable classification.
44. If the law deals equally with members of a well
defined class, it is not open to the charge of denial of
equal protection. There may be cases where even a
single individual may be in a class by himself on
account of some special circumstances or reasons
applicable to him and not applicable to others. Still such
law can be constitutional. [Ref. Constutional Law of
India by H.M. Seervai (Fourth Edition) Vol.1]
45. In Maneka Gandhi v. Union of India & Anr. - (1978)
1 SCC 248 and Charanlal Sahu v. Union of India (1990)
1 SCC 614, the Court has taken the view that when the
constitutionality of a law is challenged on the ground
that it infringes a fundamental right, what the Court has
to consider is the 'direct and inevitable effect' of such
law. A matter within the legislative competence of the
legislature has to be left to the discretion and wisdom
of the framers, so long as it does not infringe any
constitutional provision or violate any fundamental
right. The law has to be just, fair and reasonable.
Article 14 of the Constitution does not prohibit the
prescription of reasonable rules for selection or of
qualifications for appointment, except, where the
classification is on the face of it, unjust.
........
........
48. In order to examine the constitutionality of these provisions, let us state the parameters which would finally help the Court in determining such questions.
a) Whether the law under challenge lacks legislative competence?
b) Whether it violates any Article of Part III of the Constitution, particularly, Article 14?
(44 of 55) [CW-7557/2018]
c) Whether the prescribed criteria and classification resulting therefrom is discriminatory, arbitrary and has no nexus to the object of the Act?
d) Lastly, whether it a legislative exercise of power which is not in consonance with the constitutional guarantees and does not provide adequate guidance to make the law just, fair and reasonable?"
The third proviso to Rule 56 introduced by way of amendment seeks to achieve the purpose of dealing with the problem of scarcity and non-availability of sufficient number of Medical Teachers in higher medical education, especially at super- speciality level and also super-specialized treatment of the patients in the premier medical colleges and hospitals attached thereto by the experienced senior doctors, who would otherwise on attaining the age of 62 years cease to be in service. In the opinion of this Court, the classification which the third proviso to Rule 56 of the RSR seeks to make between those who have attained the age of 62 years for the purpose of holding only non- administrative posts vis-a-vis those who have not yet attained the said age, is a reasonable classification, purpose of which is to ensure the availability of medical teachers for higher medical education in the medical colleges, which are the higher centers of study in the subject of medicines both for undergraduate and postgraduate level and super-speciality treatment of patients in the premier government hospitals of the State attached to such medical colleges. This, in our considered view, has reasonable nexus with the object sought to be achieved as it classifies the medical teachers who have crossed the age of 62 years as a distinct category than those who have not attained that age. This (45 of 55) [CW-7557/2018] is the real and substantial differentia which has got a reasonable nexus with the object of introducing the third proviso to Rule 56 as even after introduction of the second proviso, whereby age of retirement was uniformly increased by the State from 60 to 62 years allowing the medical teachers to continue to serve on the administrative as well as the non-administrative positions upto the age of 62 years, the problem of scarcity of the medical teachers with sufficient experience for teaching the students in the super- speciality subjects and providing treatment to the patients in the government hospitals attached to the medical colleges of the State, could not be solved. This, in our view, is a sound and reasonable nexus with the object of the Rule under challenge, as it seeks to achieve a salutary purpose for positive public cause.
The classification which the respondents have made between the medical teachers by inserting the third proviso to Rule 56, has recognition of specific characteristic in favour of those who, but for the subject amendment, would have retired from service than those who have not yet attained the age of 62 years and could still, therefore, be considered for appointment against the administrative post. Since it has come as a positive provision giving a composite package to them, the petitioners cannot assail one part of that proviso which is beneficial to them, and question the validity of the latter part, which is integral to the main provision. The very purpose of introducing this proviso is to ensure the availability of the medical teachers as also senior/seasoned/experienced doctors as well as the doctors in the government medical colleges and the hospitals attached thereto. The two, therefore, cannot be segregated. The third proviso (46 of 55) [CW-7557/2018] satisfies the test of reasonable classification envisaged in Article 14 of the Constitution of India.
The judgment of the Supreme Court in Indravadan H Shah, supra, relied by Mr. Rajendra Soni, the learned counsel for petitioners, dealt with the challenge to the constitutional validity of the provisions of Rule 6(4)(i) and Rule 6(4)(iii)(a) of the Gujarat Judicial Service Recruitment (Amendment) Rules, 1979. According to those Rules, there was no limit or bar of age for appointment on the post of District Judge by promotion from amongst the members of the junior branch of the Gujarat Judicial Service, who served as Assistant Judges. The objection was raised about the Rules, which provided that a Civil Judge (Senior Division) after completing 48 years of age will not be eligible for consideration for promotion to the post of Assistant Judge and his name will be struck out from the select list on his completing 48 years, i.e., on reaching 49 years of age. The aforesaid provision was sought to be justified by the High Court of Gujarat on the premise that this age restriction for promotion to the post of Assistant Judge was in vogue since 1924 or so. Even in the erstwhile State of Bombay, though there was no age limit for selection to the post of District Judge directly from the Bar. The rationale for this restriction that was given was that such Assistant Judges should have sufficient number of years before they reach the age of superannuation so that their services can be utilized at the district level, and that the law making authority may have considered that a Civil Judge (Senior Division) or a Civil Judge (Junior Division), who completes 48 years of age, may not be fully equipped with the physical and mental calibre for the higher post (47 of 55) [CW-7557/2018] calling for essentially different type of duties, namely, conducting sessions cases, appeals, etc. The High Court of Gujarat accepted this contention upholding the validity of this Rule. The Supreme Court held that the reasoning given by the High Court was totally not acceptable for the simple reason that if a person holding the post of Civil Judge (Senior Division), who completes 48 years of age is not fully equipped with the physical and mental caliber for appointment to higher Judge then why on the same analogy the member of the Bar will be considered at the age of 48 years to be more suitable to be appointed on the higher and responsible post of District Judge, particularly when with the given age and experience, a judicial officer would be more suited and well equipped to perform and discharge the higher duties and responsibility attached to the higher post of Assistant Judge and that of the District Judge. Such are not the facts of the present case where the candidates who are otherwise equally situate are sought to be discriminated in the matter of promotion. In the present case, those already holding the posts of Principal, Dean, Superintendent, etc., which are in fact not the posts of promotion and are invariably selection posts. Those holding the posts of Professor are considered for appointment by way of selection against these posts on the basis of merit alone and not necessarily on the basis of seniority, although seniority may be one of the components for consideration by the Selection Committee.
Another judgment touching upon the argument of discrimination on the basis of difference in the age of retirement, cited by Mr. Rajendra Soni, the learned counsel for the petitioners, was rendered in Atul Shukla, supra. Under challenge before the (48 of 55) [CW-7557/2018] Supreme Court in that matter was the judgment of the Principal Bench of the Armed Forces Tribunal, at the instance of the Union of India. The Tribunal, by its judgment, held the respondents entitled to continue in service upto the age of 57 years in the case of officers serving on the ground duty branch and 54 years in the case of those serving in the flying branch of the Indian Air Force. The facts were like this that the officers in the Indian Air Force who got promoted to the rank of Group Captains on the basis of merit were treated as a class different than the ones who failed to make the grade in merit selection on three occasions admissible to them and were eventually promoted to the rank of Group Captains based on the length of their service and, therefore, were taken as a different class. There was differentiation in two categories. While the first category of the officers of Group Captain promoted on merit were allowed continuity in service upto 54 years and the officers of the second category, who were promoted on time scale, were sent home on attaining the age of 52 years. The solitary question for consideration before the Supreme Court was whether the respondents who at the relevant point of time held the rank of Group Captain (Time Scale) in the Indian Air Force were entitled to continue in service upto 54 and 57 years, depending upon whether they were serving in the flying or ground duty branch of the force. The Armed Forces Tribunal held the classification constitutionally not permissible. The Tribunal recorded a finding that the Group Captains (Time Scale) wear the same rank and get the same salary, grade pay and draw the same benefits as the Group Captains (Select). The Tribunal held that there appears to be no rational basis for this. Upholding that judgment, the (49 of 55) [CW-7557/2018] Supreme Court held that such basis of classification is not permissible in the law. When two employees belong to same cadre, they cannot be differentiated for the purpose of pay and allowance or other conditions of service, including the age of retirement. They have to be treated equal in all respect as the method of recruitment and promotion, are irrelevant. Such are not the facts of the present case as there is no differentiation in the age of retirement. What the respondents have done, with which the petitioners are aggrieved, is that now for the extended period of service of three years they would be required to discharge their duties on the non-administrative positions, which, according to the respondents, is for the purpose of their continued retention in the service. According to the respondents, the Government has taken a conscious decision to overcome the problem of scarcity and dearth of the medical teachers for higher education and the super- speciality treatment for the patients in the premier government hospitals of the State.
The contention that the third proviso to Rule 56 of the RSR, impugned in the present cases, is being applied retrospectively, is only noted to be rejected. The proviso in the form, in which it has been introduced, has extended the age of retirement of the existing employees from 62 to 65 years with a condition that they shall continue on such extended period of service only on the non- administrative positions. It can, therefore, hardly be argued that the impugned provisions would have retrospective effect on the petitioners. As it is, the petitioners when they were appointed on the concerned administrative posts, were fully aware of their age of superannuation being 62 years. Therefore, they cannot be (50 of 55) [CW-7557/2018] allowed to say that the impugned provision would in any case be described as taking away their vested right. The perks, facilities and privileges attached to the administrative positions are available only till their continuation on such posts and, therefore, on their discontinuation from that position, they cease to get such benefits. But this cannot be described as reduction in the rank. The issue with regard to the junior person, holding an administrative post of the Head of Department, initiating the APARs of Senior Professors, has already been clarified by the State vide order dated 02.08.2016 that for filling of the APARs of Professors senior to Head of Department, the channels specified in earlier order dated 13.05.2003 shall be followed and thus the grievance of the petitioners is not tenable.
As regards the continuation of the medical teachers appointed as the Principals in the Medical Colleges run by the Raj- MES beyond the age of 62 years, since all such appointments have been made by way of re-employment, it is even otherwise permissible under the first proviso to Rule 56 even in the Government service. Moreover, here they have been engaged in the medical colleges run by the Raj-MES where they can be continued by way of re-employment even upto the age of 70 years in terms of Clause 1A of Schedule-I of the MCI Regulations. The MCI Regulations thus make it permissible for the employer/appointing authority to retain the employees. However, converse of it may not be true because unless the appointing authority raises the age of retirement, a medical teacher cannot, as a matter of right, claim continuation in such post upto the age of 70 years.
(51 of 55) [CW-7557/2018] The provisions of Rule 56(A)(bb) of the Fundamental Rules applicable to employees of the Central Government stipulate that those who want to continue beyond age of 62 years and superannuate at 65 years must fully devote themselves to academic work including clinical work and they should not get involved and get associated with administration in any department or institution. Under challenge before the Delhi High Court in Dr. Richa Dewan Vs. Union of India - 2016 SCC OnLine Del 3634 was the judgment of the Central Administrative Tribunal, New Delhi, in two separate Writ Petitions (Civil No.2740/2014 and No.3117/2014, which dismissed the Original Applications filed by the petitioners and rejected the challenge to Office Memorandum dated 24.02.2012 that the position/designation of the Head of the Department in specialties is an administrative position and, therefore, cannot be held by specialists of the teaching sub-cadre after attaining the age of 62 years. Challenge was also made to Office Memorandum dated 14.03.2013 directing one of the petitioners that she could not continue as the Head of Department to avail the benefit of age of superannuation upto 65 years. The petitioners contended that they could continue and hold the designation of the Head of the Department even after completion of 62 years since their age of superannuation, as per the Fundamental Rules, is 65 years. They contended that they are senior and the age of superannuation of specialists in the teaching sub-cadre being 65 years, they should not be deprived of the position that they were already holding as the Head of the Department. The Court noted the Fundamental Rule 56(A)(bb), which stated that the age of superannuation of specialists including teaching and non-teaching (52 of 55) [CW-7557/2018] and public health sub-cadres of Central Health Service would be 62 years. The first proviso, however, extended the age to 65 years for specialists including teaching sub-cadres of the Central Health Service, and restricted it to those engaged in teaching activities and not occupying the administrative positions. The second proviso stipulated that the specialists in the teaching sub-cadre of the Central Health Service, who at the age of 62 years occupy administrative positions, shall have the option to seek appointment to teaching positions in case they wish to continue in the service upto the age 65 years. The difference between the case in hand and the case which was decided by the Delhi High Court was that those two provisos were not under challenge in the latter case, yet the petitioners therein were questioning the competence of the Union of India to impose restrictions on the basis of the Office Memorandums. The Delhi High Court in para 12 of the report noted that the reluctance of the petitioners in giving up the post/designation of the Head of the Department can be perceived, though it can be said that the said post is not the same as defined in clause (i) to Rule 2 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The Court further observed that this would be necessary and is obvious that if after the age of 62 years a specialist can do teaching work and cannot hold any administrative post. The Court also noted the objection of the petitioners that the Director-Professor/Professors of Excellence cannot be asked to function under the administrative control of their juniors but the Court further observed that this would be necessary and is obvious, if after the age of 62 years a specialist can do teaching work and not hold any administrative post.
(53 of 55) [CW-7557/2018] Someone junior to them in age and below the age of 62 years, would hold and exercise administrative control. The following observation of the Delhi High Court in para 12 and 13 of the report are worth quoting:-
"12. .............Another objection or contention is that Director- Professor/Professors of Excellence cannot be asked to function under the administrative control of their juniors. However, this would be necessary and is obvious, if after the age of 62 years a specialist can do teaching work and not hold any administrative post. Someone junior to them in age and below the age of 62 years, would hold and exercise administrative control. The argument that if Director-Professor/Professors of Excellence are not given the charge as the Head of the Department, and there is bound to be interference by those holding the post of the Head of the Department, also reflects the desire to hold and continue as the administrative head. In the aforesaid, we regret and express our inability to accept the said contentions, for the petitioners want to directly and indirectly assert that they would like to continue and hold on to the designation of the Head of the Department for then they would exercise administrative authority and control. This would be contrary to Clause (bb) of FR 56(A), which is not under challenge. This clause specifically stipulates that specialists exercising the option to continue after the age of 62 years to superannuate at the age of 65 years, will only engage and do teaching or academic work, which includes clinical work. They shall give up and forego their earlier role in all administrative capacities. The rationale is that students, doctors and patients in the hospital and colleges can take advantage and benefit of the specialists and their expertise in medical science after they have attained the age of 62 years and have opted to continue in teaching or academic work upto 65 years. They must not be involved or get associated with administrative work. They must disconnect and dissociate themselves from administration and administrative work.
13. The contentions raised before us do reflect that in spite of submissions to the contrary, there is reluctance to give up the designation of the Head of the Department as it is in fact akin to the post of the Head of the Department as defined in clause (i) of Rule 2 of the 1965 Rules. If Rule 2(i) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 is held to be applicable, the petitioners certainly cannot hold the said designation. If we accept that the designation/post of the Head of the Department is not a statutory designation under the aforesaid Rule 2(i) and (54 of 55) [CW-7557/2018] is a mere designation that has gained recognition and acceptance as a convention, our conclusion would not be any different. The purpose and intent apparent from clause (bb) of FR 56 (A) and OM dated 24th February, 2012 is that specialists who want to continue beyond the age of 62 years and superannuate at 65, must fully devote themselves to academic work including clinical work, and they should not get involved and get associated with the administration in any department or institution. Administration and problems relating to day to day working etc. should be left for others to handle."
With regard to the dispute as to what would be teaching and academic work vis-a-vis administrative work, the Delhi High Court noted that the Fundamental Rules, however, do not define and clearly demarcate what is teaching and administrative work. The statutory provisions are not violated for they do not provide and stipulate the distinction between teaching or academic activities and administrative positions or work. When the Fundamental Rules or other Rules are silent or not expressive, it is open to the Government to supplement the rules by issuing an Office Memorandum stating the posts or designations which are the administrative posts and would be included and treated as academic or teaching work. The Court held that "why and for what reason specialists above the age of 62 years should not hold administrative positions" falls within the domain of policy. The Courts cannot substitute and override the government policy. The reasons for the policy are perceptible but need not be recorded for this is not a lis or the dispute raised. Even though in the aforesaid case before the Delhi High Court, the validity of two provisos to Rule 56(A) of the Fundamental Rules was not questioned, yet the Court held that this question falls squarely within the domain of the policy of the State and the Court cannot substitute or override such policy. It was held that on the question of scope of judicial (55 of 55) [CW-7557/2018] review when examining the policy of the Government, the Courts do not act as the appellate authorities checking the wisdom, correctness or appropriateness of the policy.
In view of the above discussion, we hold that even though this Court wields the power of judicial review to examine the constitutional validity of the rule in question but this Court does not act as an appellate authority over the policy decision of the Government to check its wisdom to find out whether the policy is correct or appropriate. In all such matters, the executive is entitled to certain leverage to formulate its policies, which are open to interference by the Courts in exercise of power of judicial review only if they are manifestly arbitrary, capricious or are opposed to any statutory provision or violating of any constitutional provision. The wisdom of the executive on comparative merit of the alternative decisions is not the matter within the domain of this Court.
Upshot of the above discussion is that all the writ petitions deserve to fail and are hereby dismissed. This also disposes of stay applications as also other applications, if any.
Office to place a copy of this judgment in each connected matter.
(GOVERDHAN BARDHAR),J (MOHAMMAD RAFIQ),J
//Jaiman//
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