Central Administrative Tribunal - Hyderabad
Dr Maqbool Ahmed vs M/O Ayush on 14 July, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
Original Application No.021/00170/2020
Thursday, this the 14th day of July, 2022
CORAM:
HON'BLE Mr. ASHISH KALIA, JUDICIAL MEMBER
HON'BLE Mr. K. V. EAPEN, ADMINISTRATIVE MEMBER
Dr. Maqbool Ahmed,
S/o. Omar Ali, Aged about 60 years,
Occ: RO(U) & Pharmacy Incharge,
National Research Institute of Unani Medicine
for Skin Disorders (NRIUMSD)
(CCRUM, Ministry of AYUSH, Government of India)
AG Colony Road, Opp: ESI Hospital,
Erragadda, Hyderabad - 500 038.
R/o. Kishan Bagh, Bahadurpura, Hyderabad.
500 039 - Applicant
(By Advocate: Mr. K. Sudhakar Reddy)
versus
1. Union of India rep by its Secretary to Government,
Ministry of AYUSH, Government of India,
AYUSH Bhavan, B-Block, GPO Complex,
New Delhi - 110 023.
2. The Director General,
Central Council for Research in Ayurvedic Sciences,
(Ministry of AYUSH, Government of India),
Jawaharlal Nehru Bhartiya Chikitsa Evam Homoeopathy,
Anusandhan Bhawan, 61-65, Institutional Area,
Opp. D Block, Janakpuri, New Delhi - 110 058.
3. The Assistant Director (Ay),
National Institute of Indian Medical Heritage (NIIMH),
(CCRAS, Ministry of AYUSH, Government of India)
Hyderabad - 500 036. - Respondents
(By Advocate: Mrs. K. Rajitha, Sr. CGSC)
This application having been heard on 29.06.2022, the
Tribunal on 14.07.2022 delivered the following :
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ORDER
Per : Mr. K. V. EAPEN, ADMINISTRATIVE MEMBER The applicant had filed this O.A being aggrieved by the action of the National Research Institute of Unani Medicine for Skin Disorders (NRIUMSD) in passing the Office Order No. 473 2019-2020 dated 09/18.01.2020 indicating that his superannuation from service would take place on 29.02.2020. The relief sought by him are as follows:
"Declare the action of the respondents in Superannuating the applicant at the age of 60 years as illegal, arbitrary and clear violation of Fundamental (Second Amendment) Rules 2018 issued vide DoPT, Notification Dated 11th August 2018 and Bye laws clause 34 & 47 of CCRAS, Ministry of AYUSH, Govt. of India and also clear violation of applicant's fundamental rights guaranteed under Article 14 and 21 of the Constitution of India and Consequently direct the respondents to continue the applicant in service until he attains the age of 65 year's with all the consequential benefits and pass such order or orders as deemed fit in the circumstances of the case."
2. It is submitted by the applicant that the Ministry of Health & Family Welfare, Government of India had enhanced the age of superannuation of AYUSH doctors under Ministry of AYUSH and working in CGHS dispensaries/hospitals to 65 years with effect from 27.09.2017 vide its order produced at Annexure A6 dated 24.11.2017. He also brought to notice the DoPT notification of amendment of FR GSR 567 (E) to enhance superannuation age of General duty medical officers and specialist under Central Health Services under CHS to 65 years vide F.No. 25012/3/2013- Estt.dated 31.05.2016. Further, under Annexure A9 he brought to notice the DoPT notification of amendment of FR GSR 27(E) to enhance superannuation age of General duty medical officers and specialist under -3- Central Health Services under Ministry of Health & Family Welfare. Similar DoPT notification of amendment of FR GSR to enhance the age of superannuation of doctors of Allopathy under CHS & other Ministries and AYUSH doctors working in Ministry of AYUSH, Govt. of India to 65 years is issued vide Annexure A10 dated 11.08.2018.
3. The applicant has relied on all the above notifications and documents in support of his contention that retirement age should be at 65 years for all AYUSH doctors which includes doctors working under the Ministry of AYUSH or under their administrative control. He claims that these orders are applicable to all AYUSH doctors working under the Ministry of AYUSH, irrespective of the organisation under which they may be working. He has particularly relied on the order produced at Annexure A7 dated 24.11.2017 issued by the Ministry of AYUSH, wherein, it is mentioned as follows:-
"The president is pleased to enhance the age of superannuation of the AYUSH doctors under the Ministry of AYUSH and working in CGHS Dispensaries/Hospitals to 65 years with effect from 27.09.2017, i.e., the date of the approval of the Union Cabinet.
2. The doctors shall hold the administrative posts only till the date of attaining the age of 62 years and thereafter their services shall be placed in non-administrative positions."
4. The applicant has also produced CAT Principal Bench order passed in O.A 2712/2016 along with connected cases allowing the applicants to continue in service till they complete the age of 65 years. Basically, his contention, as brought out earlier is that being part of the Ministry of AYUSH, he is governed by all the same set of Rules of Ministry of AYUSH and thus should retire at the age of 65 years.
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5. When the matter came up before this Tribunal on 21.02.2020, having relied on the orders of the Hon'ble High Court of Delhi in W.P. No.9554 of 2018, it was found that the interim relief requested for required consideration in order to ensure that there is no irreparable injury caused to the cause of the applicant. Hence, in view of this, respondents, as an interim measure, were directed to allow the applicant to work beyond the age of 60 years as were allowed by superior judicial forums in respect of similarly situated employees. Respondents then filed reply statement along with an M.A No. 397/2020 to vacate the interim order and to dismiss the O.A. In their reply the respondents have clarified that the applicant is not governed by the rules framed by the Central Counsel for Research in Ayurvedic Sciences (CCRAS). The applicant is working in the National Research Institute of Unani Medicine for Skin Disorders (NRIUMSD) which is under the Central Council for Research in Unani Medicine (CCRUM). It was submitted that the applicant was deliberately making reference to bye-laws of CCRAS which are not applicable to him. It is further submitted that the date of his retirement has not been enhanced to 65 years as there was no modification in the bye-laws applicable to CCRUM employees. It is submitted that the Government of India decision is only in respect of officers working in Ministry of AYUSH and not to employees of Research Councils/Autonomous bodies/National Institute/Research Councils. The doctrine of legislations by reference is not applicable in the O.A as the government orders have not been adopted by research council nor have their existing provisions modified. Bye-law 34 of CCRUM clearly provides that 60 years shall be the date of retirement of its Research Officers and the -5- applicant is a Research Officer (RO) in the National Research Institute of Unani Medicine for Skin Disorders (NRIUMSD).
6. Further, it is submitted by the respondents that the applicant is not liable for posting in the Ministry of AYUSH itself nor in CGHS dispensaries. He is an employee of CCRUM and has never worked in any CGHS dispensary or in Ministry of AYUSH. Only CHS officers recruited by UPSC are posted in CGHS dispensaries and sometimes in Ministry of AYUSH, where they continue to be governed by CGHS Rules, which are not at all applicable to the applicant. However, the applicant, it is submitted, has deliberately not impleaded CCRUM and wrongly impleaded DG CCRAS and NIMH, Hyderabad as respondent nos. 2 & 3, though they have nothing to do with his employment. It is submitted that the announcement dated 27.09.2017 nowhere states that enhanced retirement age is applicable to autonomous bodies or research councils under Ministry of AYUSH. The applicant is thus misinterpreting the government decisions in a bid to continue to work for five more years and take advantage of rules of CHS which are not applicable to him. Further, the applicant, it is submitted, is engaged in Research in Unani Medicine and not involved with patient care, academic activities in medical colleges or in implementation of national health program for delivery of health care services. It is submitted that Ministry of AYUSH vide its letter dated 13.12.2018 (produced by respondents at Annexure-II) clearly and emphatically stated that enhanced age of retirement is not applicable to AYUSH doctors working in Research Councils/ National Institutes. The amended FR 56 (BB) does not refer to AYUSH doctors working as ROs in Research Councils. It only refers to -6- DGMOs, specialists including teaching/ non teaching and public health sub cadres of central health services. The applicant does not belong to either of these categories and it has not been adopted by the CCRUM and thus it is not applicable to its employees including the applicant. Ministry of AYUSH vide its letter dated 31.10.2017, brought out by the respondents at Annexure- III, has specifically clarified this matter by stating, in paragraph 2, as follows:-
"The decision of the Cabinet is applicable to the AYUSH doctors directly working under the administrative control of Ministry of AYUSH, i.e., AYUSH doctors working under CGHS. The decision of the Union Cabinet is not applicable to autonomous bodies functioning under Ministry of AYUSH i.e., Research Councils/National Institutes."
7. It appears that after these clarifications the respondents filed an M.A No. 397/2020 for vacating of the interim order on the basis of a latter given to them from the CCRUM New Delhi dated 3rd July 2020. It has been brought out in the letter (produced along with the M.A) that the Hon'ble Apex Court vide its order dated 01.06.2020 had already set aside interim orders issued by Hon'ble Delhi High Court dated 12.09.2018 allowing continuation in service, after attaining the age of 60 years without salary. Hence, it was submitted that the interim order dated 21.02.2020 passed by this Tribunal has become unjustifiable and is contrary to the judgment of the Hon'ble Supreme Court.
8. Learned counsel for the applicant during hearing however insisted that the Hon'ble High Court of Odisha had allowed a similar petition as well and that other benches are allowing the continuation of similarly situated persons, allowing the persons working in various research institutes under -7- their jurisdiction to continue upto the age of 65 years. He brought to notice the judgment of Hon'ble Supreme Court in Civil Appeal No. 4578/2021 in North Delhi Municipal Corporation v Dr. Ram Naresh Sharma & Ors., which he submits is supporting his contentions. However, we note that even in the judgment provided, it has been indicated that there is an appeal pending in the Hon'ble Supreme Court against the Hon'ble Odisha High Court judgment in W.P.(C).No.30620/2020. The respondents in the petition have filed an SLP No. 4110/2021 before the Ho'ble Supreme Court which is pending before the Hon'ble Apex Court. It appears that the judgment of Odisha High Court is neither suspended nor stayed and is pending for final disposal. Thus, it appears that the law will be settled when the above appeal is finally disposed of by the Hon'ble Supreme Court.
9. In view of the above, it appears to us that there is no purpose served by passing any orders on the relief sought in the O.A at this stage when the SLP No. 4110/2020 is pending before the Hon'ble Supreme Court. The respondents can only be directed to consider the case of the applicant if in case the orders of the Hon'ble Apex Court in the SLP goes in favour of the applicant. They may pass suitable orders if the applicant is similarly situated in the said SLP. However, learned counsel for the applicant submits that though the applicant is continuing in the research institute on the basis of the interim orders passed by this Tribunal, he is not getting any pay and allowances etc. During hearing he has prayed for the normal retirement benefits to be given to the applicant as were due to him in case he would have retired at the age of 60 on 29.02.2020. In this connection, he has also brought to notice a decision of the Hon'ble High Court of Delhi on -8- 11.02.2022 in W.P.(C).2681/2022 & CM APPL. 7669/2022 in Central Council for Research in Unani Medicine v Dr. Salma Khatoon & Ors., in which the Hon'ble High Court after considering the orders of the Principal Bench of this Tribunal dated 20.09.2021 in O.A 2058/2021 had found that there should be no difficulty in the petitioner (CCRUM) releasing the retiral dues of the respondent no. 1 in W.P(C) 2681/2022, since it is the petitioner's own case that the respondent no. 1 (in W.P(C) 2681/2022) superannuated on 31.01.2018. It was found that given this position, the respondent no. 1's (in W.P(C) 2681/2022) circumstances cannot be worse than that which obtained on 31.01.2018. After consideration, we direct that following the ratio of this Judgment, the concerned authorities may take a decision within a period of 3 months regarding the release of the pension and other retirement benefits to the applicant in this O.A as he would normally been entitled to, if he had been allowed to superannuate on attaining the age of 60 on 29.02.2020. The M.A 397/2020 for vacation of interim order is allowed.
10. The O.A and M.A 397/2020 are accordingly disposed of with the directions as above.
(K. V. EAPEN) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
bp