Patna High Court
Dr.Kaushal Kishore Labh & Anr vs The State Of Bihar & Ors on 14 February, 2012
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.9653 of 2011
===========================================================
Dr.Radha Krishan Choudhary Son of Sri Rameshwar Choudhary, at present resident
of Sandalpur Road, P.S. Sultanganj, Patna District Patna (Bihar), at present posted
as Civil Surgeon, Patna.
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 10180 of 2011
===========================================================
1. Dr.Mrs.Pratima Modi W/O Satya Deo Modi R/O Nawabbag Colony, P.S. - Tilka
Manjhi, Distt. - Bhagalpur At Present Posted As Civil Surgeon, Bhagalpur.
.... .... Petitioner/s
Versus
1. The State Of Bihar , Through The Chief Secretary, Government Of Bihar, Patna.
2. The Principal Secretary, Health Department, Government Of Bihar, Patna.
3. The Principal Secretary, Finance Department, Government Of Bihar, Patna.
4. The Special Secretary, Finance Department, Government Of Bihar, Patna.
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 9998 of 2011
===========================================================
1. Dr.Kaushal Kishore Labh son of Late Shri Rameshwar Labh, resident of Flat
No. 301/B, Shivam Enclave, Anand Puri, West Boring Canal Road, Patna -1, at
present posted as Civil Surgeon, Bhojpur at Ara.
2. Dr. Rajesh Kumar Gami, son of Late Shri Rajendra Gami resident of C/O. Hotel
Ravi, Post D.M. C. Laheriasarai, district Darbhanga at present posted as
Medical Officer, Primary Health Centre, Sindhia, District Samastipur.
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 11007 of 2011
===========================================================
1. Dr.Kalyan Kumar S/O Late Rama Charan R/O Vill+P.O. Ratwara Windwara,
Police Staton Aurai Dist. Muzaffarpur
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna
2. The Principat Secretary Department Of Health, Govt. Of Bihar, Patna
3. The Principal Secretary Finance Dept., Govt. Of Bihar, Patna
4. The Special Secretary Finance Dept., Govt. Of Bihar, Patna
.... .... Respondent/s
with
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 2
Civil Writ Jurisdiction Case No. 10551 of 2011
===========================================================
1. Dr.Siya Ram Pyasa S/O Late Panchu Rajak R/O Ram Sakar Pura, P.S. Khagaria,
Distt.-Khagaria
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secretary Govt. Of Bihar Old
Secretariat, Patna
2. The Principal Secretary Health Department Govt. Of Bihar New Secretariat,
Patna
3. The Principal Secretaty Fincnce Department Govt. Of Bihar New Secretariat,
Patna
4. The Special Secretary, Finance Department Govt. Of Bihar New Secretariat,
Patna
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12057 of 2011
===========================================================
1. Dr.Arjun Prasad Singh S/O Late Ram Praskash Singh R/O Village - Fatehpur,
P.S. - Barh, District - Patna
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secretary Government Of Bihar, Patna
2. The Principal Secretary, Department Of Health, Government Of Bihar, Patna
3. The Principal Secretary, Department Of Finance, Government Of Bihar, Patna
4. The S Pecial Secretary, Department Of Finance, Government Of Bihar, Patna
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 11871 of 2011
===========================================================
1. Dr.Chandra Kumar Singh Late Ramdeo Singh At Post Golma, P.S.- Saur Bazar,
Distt. Saharsa
.... .... Petitioner/s
Versus
1. The State Of Bihar , Through The Chief Secretary, Govt. Of Bihar Null Patna
2. The Principle Secretary, Health Department, Govt. Of Bihar Patna
3. The Principal Secretary, Finance Department, Govt. Of Bihar Patna
4. The Special Secretary, Finance Department, Govt. Of Bihar Patna
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12322 of 2011
===========================================================
1. Dr.Equabal Hussain S/O Wakil Ahmad R/O Rashila Manzil, Dharmashala Road,
Jharia, Distt.- Dhanbad Presently Residing At Shanti Kunj, Haroon Nagar, Sector-2,
Opposite Petrol Pump, Phulwarisharif, Distt.- Patna
.... .... Petitioner/s
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 3
Versus
1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna
2. The Pincipal Secretary, Health Department, Govt. Of Bihar, Patna
3. The Principal Secretary, Finance Department, Govt. Of Bihar, Patna
4. The Special Secretary, Finance Department, Govt. Of Bihar, Patna
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12087 of 2011
===========================================================
1. Dr.Arun Kumar Sinha S/O Late Sita Ram Sinha, R/O Village - Mahmda, P.S. -
Pusa, District - Samastipur (Bihar) At Present Posted As Regional Deputy Director,
Health Magadh Division, Gaya, Bihar
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secreatary, Government Of Bihar, Patna
2. The Principal Secretary, Null Goverment Of Bihar, Patna
3. The Principal Secreatary, Finance Department Government Of Bihar, Patna
4. The Special Secretary, Finance Department Government Of Bihar, Patna
5. The Deputy Secretary, Health Department, Government Of Bihar, Patna
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12155 of 2011
===========================================================
1. Dr.Arun Kumar Jha Son Of Sri Tribeni Kant Jha Resident Of B/102,Om Shail
Baran Apartment,'A'Block,Sheikhpura Bagicha,Patna,Police Station Shashtri
Nagar,District Patna.
2. Dr.Veena Pandey Wife Of Sri Arun Kumar Pandey Resident Of Flat
No.312,Prasambi Saryug Vihar Apartment Goshai Tola,Police Station-
Patliputra,Patna.
3. Dr.Kumkum Sinha Wife Of Dr.Girsh Kishore Sinha Resident Of Sector K
194,Hanuman Nagar,Kankarbagh,Police Station,Patrakar Nagar,District-Patna.
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secretary Government Of Bihar Patna
2. The Principal Secretary,Health Department Government Of Bihar Patna
3. The Principal Secretary,Finance Department Government Of Bihar Patna
4. The Specical Secretary,Finance Department Government Of Bihar Patna
5. The Deputy Secretary,Health Department Government Of Bihar Patna
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12869 of 2011
===========================================================
1. Dr. Madhukar Prasad S/O Late Muneshwar Prasad Resident At 'Manoram', East
Boring Canal Road, P.S.- Sri Krishnapuri, Distt.- Patna, At Present Posted As
District Tuberculosis Officer, Bhagalpur
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secretary Government Of Bihar, Patna
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 4
2. The Principal Secretary Health Department, Government Of Bihar, Patna
3. The Principal Secretary Finance Department, Government Of Bihar, Patna
4. The Special Secretary Finance Department, Govt. Of Bihar, Patna
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 10736 of 2011
===========================================================
1. Dr.Munendra Prasad son of late Shri Rameshwar Prasad, resident of village
Amarpur, P.O. Dharaut, P.S. Makhdumpur, District Jehanabad.
2. Dr. Arun Kumar, son of Late Shri Ram Chandra Prasad, resident of Road No. 2,
Shri Krishna Nagar, P.S. Budha Colony, District Patna.
.... .... Petitioner/s
Versus
The State Of Bihar & Ors
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 13227 of 2011
===========================================================
1. Dr.Mukteshwar Lal Das S/O Late Yugal Kishore Das R/O Vill.-Kumrouli, P.S.-
Karsi Simari, Distt.-Darbhanga, Bihar.
2. Dr. (Smt.) Kumkum Prasad W/O Sri Uday Shankar Upadhyay At Present R/O
Nageshwar Colony, P.S.-Budha Colony, Patna, Distt.-Patna, Bihar.
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secretary, Govt. Of Bihar, Patna.
2. The Principal Secretary, Health Deptt., Govt. Of Bihar, Patna.
3. The Principal Secretary, Finance Deptt., Govt. Of Bihar, Patna.
4. The Special Secretary, Finance Deptt., Govt. Of Bihar, Patna.
5. The Deputy Secretary, Finance Deptt., Govt. Of Bihar, Patna.
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 13355 of 2011
===========================================================
1. Dr.Vidya Sagar Yadav S/O Late Latthoo Yadav R/O Vill.- Rahu, P.O. And P.S.-
Sahebpur Kamal, Distt.- Begusarai
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secretary Govt. Of Bihar, Patna
2. The Principal Secretary, Health Department Govt. Of Bihar, Patna
3. The Principal Secretary, Finance Department Govt. Of Bihar, Patna
4. The Special Secretary, Finance Department Govt. Of Bihar, Patna
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 12332 of 2011
===========================================================
1. Dr.Sanjay Kumar Chakhaiyar S/O Late B.K. Chakhaiyar R/O Road No.-9,
Rajendra Nagar, Patna-16, P.S.-Kadam Kuan, Distt.-Patna
2. Dr. Bhola Prasad Singh S/O Late Baldeo Mahto R/Op Village Sanha Naya Tola
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 5
P.S.-Sahebpur Kamal, Distt.-Begusarai
.... .... Petitioner/s
Versus
1. The State Of Bihar
2. Principal Secretary, Department Of Health Govt. Of Bihar Patna
3. Principal Secretary, Fincance Department Govt. Of Bihar Patna
4. Special Secretary Fincance Department Govt. Of Bihar Patna
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 14858 of 2011
===========================================================
1. Dr. Anjani Kumar Gupta S/O Late Baleshwar Prasad R/O M/H-Amir Gali,
Tajpur Road, Samastipur, P.S.-Samastipur, Distt.-Samastipur (Bihar).
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secretary Govt. Of Bihar, Patna.
2. The Principal Seceretary, Health Deptt., Govt. Of Bihar, Patna.
3. The Principal Seceretary, Finance Deptt., Govt. Of Bihar, Patna.
4. The Special Seceretary, Finance Deptt., Govt. Of Bihar, Patna.
5. The Deputy Seceretary, Health Deptt., Govt. Of Bihar, Patna.
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 14859 of 2011
===========================================================
1. Dr. Dharamdev Singh S/O Late Awadh Singh R/O Vill. Basudeopur, P.S.
Bajpatti Distt.-Sitamarhi (Bihar) At Present R/O Civil Surgeon Awas, Lakhi Sarai,
P.S. And Distt. Lakhi Sarai (Bihar).
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secretary Govt. Of Bihar, Patna.
2. The Principal Seceretary, Health Deptt., Govt. Of Bihar, Patna.
3. The Principal Seceretary, Finance Deptt., Govt. Of Bihar, Patna.
4. The Special Seceretary, Finance Deptt., Govt. Of Bihar, Patna.
5. The Deputy Seceretary, Health Deptt., Govt. Of Bihar, Patna.
.... .... Respondent/s
with
Civil Writ Jurisdiction Case No. 15318 of 2011
===========================================================
1. Dr.Mustafa Khan S/O Late Md. Hamidullah Khan R/O Flat No.- 301, Alnoor
Mansion, Opposite Mahavir Cancer Sansthan, At & P.S.- Phulwari, District- Patna
.... .... Petitioner/s
Versus
1. The State Of Bihar Through The Chief Secretary Government Of Bihar, Patna
Null Null
2. The Principal Secretary, Health Department, Government Of Bihar
3. The Principal Secretary, Finance Department, Government Of Bihar
4. The Special Secretary, Finance Department, Government Of Bihar, Patna
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 6
.... .... Respondent/s
With
Civil Writ Jurisdiction Case No. 5933 of 2011
===========================================================
Dr. Dilkishore Raman Son of Late R. B. Raman, resident of Village Maw, P.S.
Tikari, District Gaya at present posted as Director Health Services, Bihar, Patna.
............. Petitioner
Versus
The State of Bihar and others . . . . . . . . . . . . . . . . . Respondents
===========================================================
Appearance :
(In CWJC No. 9653 of 2011)
For the Petitioner/s : MR. SHARWAN KUMR, SR. ADVOCATE
Mr. ASHOK KUMAR DUBEY
For the Respondent/s : Mr. MADHURESH PRASAD GP12
Mr. Rajeev Kumar Singh, G.P. 15
Mr. Shyameshwar Kumar Singh, A.C.
(In CWJC No. 10180 of 2011)
For the Petitioner/s : Mr. SANJAY SINGH
Mr. ALOK KUMAR RAHI
For the Respondent/s : Mr. RAJESH KUMAR GP8
(In CWJC No. 9998 of 2011)
For the Petitioner/s : Mr. ANJANI KUMAR SINHA
For the Respondent/s : Mr. HARENDRA PD. SINGH GA8
Mr. SATYAPAL NAROTTAM, A.C.
(In CWJC No. 11007 of 2011)
For the Petitioner/s : Mr. PRAMOD MISHRA
For the Respondent/s : Mr. JAWAHAR PD. KARN AAG4
Mr. Rajesh Kumar, A.C.
(In CWJC No. 10551 of 2011)
For the Petitioner/s : Mr. RAVI VERMA
For the Respondent/s : Mr. MANOJ KR. AMBASTA GP14
Mr. Sanjay Kumar Pandey A.C.
Mr. Sandeep Patil, A.C.
(In CWJC No. 12057 of 2011)
For the Petitioner/s : Mr. BANWARI SHARMA
Mr. SHIV KUMAR
For the Respondent/s : Mr. S.RAZA AHMAD AAG9
Mr. SHAHID SIDDIQUI, A.C.
(In CWJC No. 11871 of 2011)
For the Petitioner/s : Mr. ANANT KUMAR
For the Respondent/s : Mr. AVNISH NANDAN SINHA GP11
(In CWJC No. 12322 of 2011)
For the Petitioner/s : Mr. RADHA KRISHNA SINGH
For the Respondent/s : Mr. AWDHESH KUMAR PANDEY GA9
(In CWJC No. 12087 of 2011)
For the Petitioner/s : MR. Y.V. GIRI, SR. ADVOCATE.
Mr. ASHOK KUMAR DUBEY
For the Respondent/s : Mr. RAJEEV KR. SINGH GP15
(In CWJC No. 12155 of 2011)
For the Petitioner/s : Mr. ASHOK KUMAR DUBEY
For the Respondent/s : Mr. RAJESH KR.VERMA SC27
(In CWJC No. 12869 of 2011)
For the Petitioner/s : Mr. ALOK KUMAR RAHI
For the Respondent/s : Mr. ANJANI KR SHARAN SC9
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 7
(In CWJC No. 10736 of 2011)
For the Petitioner/s : Mr. ANJANI KUMAR SINHA
For the Respondent/s : Mr. VINAY KRITI SINGH SC5
(In CWJC No. 13227 of 2011)
For the Petitioner/s : Mr. ASHOK KUMAR DUBEY
For the Respondent/s : Mr. RAJESH KUMAR GP8
(In CWJC No. 13355 of 2011)
For the Petitioner/s : Mr. ANANT KUMAR
For the Respondent/s : Mr. CHAKRADHARI SHAR SINGH AAG
(In CWJC No. 12332 of 2011)
For the Petitioner/s : Mr. RAJEEV KUMAR
For the Respondent/s : Mr. SHASHI BHUSHAN KR. SC7
(In CWJC No. 14858 of 2011)
For the Petitioner/s : Mr. ASHOK KUMAR DUBEY
For the Respondent/s : Mr. RISHIRAJ SINHA GP19
(In CWJC No. 14859 of 2011)
For the Petitioner/s : Mr. ASHOK KUMAR DUBEY
For the Respondent/s : Mr. NEELU AGRWAL GA6
Mr. JAINENDRA KUMAR SINHA, A.C.
(In CWJC No. 15318 of 2011)
For the Petitioner/s : Mr. ANJANI KUMAR SINHA NO-1
For the Respondent/s : Mr. MADHURESH PRASAD GP12
===========================================================
CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
C.A.V. JUDGMENT
Date: 14 -02-2012
All the petitioners are doctors belonging to the Bihar
Health Services. Since they all have a common grievance against the
State, all the writ applications in question filed were ordered to be
clubbed together and heard together. Since common questions of law
have been raised for consideration in these writ applications, these are
disposed of by a common order.
2. The cause of action for these petitioners arose when
the State of Bihar through Department of Finance decided to issue a
notification dated 28.01.2011 bringing about an amendment in the
Bihar Service Code, 1952. By the said notification Rule 73(1) of the
Bihar Service Code came to be amended by adding a proviso to the
said sub-rule (1). The amendment is being quoted below as this is the
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 8
bone of contention in all these writ applications:-
" Provided further also that the date of
old age retirement of the post Graduate Degree holder
Doctors of Indira Gandhi Institute of Cardiology,
Patna shall be in the after-noon of the last day of the
month in which he attains the age of 65 years, but if
his date of birth is the first day of a month, then they
will retire in the afternoon of the last day of
immediate previous month of it."
3. This amendment giving benefit of enhanced age of
retirement to 65 years to the doctors having Post Graduate degree
belonging to Indira Gandhi Institute of Cardiology (hereinafter to be
referred to as the I.G.I.C.) at Patna has been alleged to be a hostile
discrimination, violative of Articles 14 and 16 of the Constitution of
India. The primary contention of the petitioners is that the State
Government has created a class amongst a class to extend the benefit
of additional three years of service to the doctors belonging to I.G.I.C.
alone for extraneous reasons when all the doctors; especially the
doctors of the Bihar Health Services are one class. The government by
the said amendment and notification (annexure-5) have denied similar
benefit to a large section of similar persons belonging to the cadre, by
virtue of the said notification. They want quashing of annexure-5 or
a direction upon the respondent State to enhance their age of
retirement too, just like doctors of I.G.I.C. from the date of the
notification of annexure-5 i.e. 28.1.2011.
4. During the pendency of the writ application there is a
development which led to filing of certain Interlocutory applications;
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 9
especially I.A. No. 5861 of 2011 filed in C.W.J.C. No. 9653 of 2011
which has been treated to be the main writ application. This I.A. was
filed because the Department of Health under the signature of the
Deputy Secretary decided to reject the claim of some of the petitioners
for enhancement of their age vide order dated 24.06.2011 which is
also being assailed in the present writ application as annexure-9. This
I.A. was allowed on 9.9.2011. Therefore, quashing of even this
annexure has been demanded by the petitioners.
5. When the notification contained in annexure-5
enhancing the age of the doctors of the I.G.I.C. was notified, many
writ applications came to be filed before the High Court. Since the
State was not forthcoming with their stand as to how they have
created a class amongst a class, the High Court in various writ
applications at that stage disposed it of with liberty to those petitioners
to approach the Principal Secretary, Health with their grievance and
the Principal Secretary was required to examine the matter whether
there was discrimination practiced in issuance of the notification
contained in annexure-5. Some of those petitioners did approach the
Principal Secretary, Health and the reason for rejection of their claim
has been assigned in annexure-9. The stand of the State as to the
reasons for denying the benefit of enhanced age of retirement has to
be culled out from annexure-9 to the writ application.
6. The Court would like to quote the relevant part of
the order of rejection because much of the argument has been made at
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 10
the Bar either on behalf of the petitioners or the State based on the so
called justification given therein. In fact, it is the stand of the
petitioners that the question of discrimination and arbitrariness
emerges from a plain reading and critical scrutiny of the reasons so
assigned:-
"bfUnjk xk¡/kh g`n; jksx laLFkku] iVuk ,d Lo'kklh
laLFkku ds :i esa iVuk fpfdRlk egkfo|ky; ,oa
vLirky ls vyx fd;k x;k] ftls fpfdRlk f'k{kk ds
{ks= esa mRd`"V laLFkku ds :i esa fo'ks"k dj g`n; jksx ds
fy, mRd`"V laLFkku cuk;s tkus ds mn~ns'; ls fd;k x;k
gSA bl fof'k"V izd`fr dks ns[krs gq, laLFkku esa dk;Zjr
iksLV xzt
s q,V fMxzh/kkjh fpfdRldksa dh lsok fuo`fRr dh mez
lhek 62 ls 65 o"kZ dh xbZ gSA (emphasis mine) mi;qZDr
ds vkyksd esa vU; laLFkkuksa ds fpfdRldksa dh rqyuk
bfUnjk xk¡/kh g`n; jksx laLFkku ds iksLV xzt
s q,V fMxzh/kkjh
fpfdRldksa ls ugha fd;k tk ldrk gSA"
7. Another significant aspect which the Court must note
is yet another decision taken by the State, by virtue of which yet
another notification dated 22.12.2011 has been issued further
amending Rule 73(1) of the Bihar Service Code 1952. This has the
effect of raising the age of retirement of the members of Bihar Health
Service Cadre which too stands enhanced to 65 years. This
notification dated 22.12.2011 is annexure-17 to the writ application
annexed with I.A. No. 9 of 2012. Since that is also a significant
development on which submissions have been made on behalf of the
parties to the dispute, I.A. No. 9 of 2012 is allowed.
8. The Court must clarify at the outset that after
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 11
issuance of annexure-17 dated 22.12.2011 all the members of the
cadre of Bihar Health Services have been given the benefit of
extended age of retirement, which is 65 years, at par with the doctors
of I.G.I.C. To that extent the recent amendment or notification issued
by the State, contained in annexure-17, brings all the doctors on equal
footing.
9. Discrimination, therefore, now is to be judged for the
period when impugned notification contained in annexure-5 was
issued on 28.01.2011 till 22.12.2011 before annexure-17 came into
existence. This has significance because many a doctors have
superannuated between this period and they have, therefore, made
submissions that if annexure-5 is held to be discriminatory and
violative of Articles 14 and 16 of the Constitution, then all those
persons who have retired after the notification contained in annexure-
5 was issued and before annexure-17 came into play on 22.12.2011
will also derive same benefit and they shall not be treated differently
for this period, merely because the State finally got to see reason at
the end of the year and not the beginning.
10. These petitioners have also drawn the attention of
this Court to the fact that when they filed their writ applications
earlier, challenging annexure-5 as well as annexure-9, the order of
rejection, the Court gave them some kind of protection in the sense
that the question of retirement of the petitioners was made subject to
the result of the writ applications. This would be evident from perusal
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 12
of the order dated 27.06.2011. The stand of the petitioners, therefore,
is that the issue will remain alive and is required to be decided by the
Court as to what would be their status despite their superannuation
between 28.01.2011 and 22.12.2011.
11. From perusal of the reason given in annexure-9
which has been quoted in the earlier part of the order, the justification
given by the State to extend the benefit of enhanced age of retirement
to the doctors holding Post Graduate degree belonging to I.G.I.C. is
that I.G.I.C. is an autonomous body (Swashashi Sansthan)
independent of Patna Medical College and Hospital and the said
Institution has been created as an Institution of excellence in the field
of medical education as well as cardiac care. Looking at the
peculiarity which the Institution commands, the government decided
to enhance the age of superannuation from 62 to 65 years to all those
doctors working in the said Institution having Post Graduate Degree.
It is the stand of the State in the said order that the doctors belonging
to other Institutions cannot compare themselves with the doctors of
I.G.I.C.
12. Many loopholes have been pointed out in the
reasoning given in the order contained in annexure-9 on behalf of the
learned counsel representing the petitioners. It is their contention that
classification cannot be made as a matter of policy which creates
discrimination in the same cadre or service as it will lead to hostile
discrimination and cannot stand the scrutiny or satisfy the touch stone
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 13
of Article 14 of the Constitution of India.
13. Yet another submission or contention is that the
reason given in annexure-9 is not germane to the actual facts but is
only a smoke screen created to show that the doctors of I.G.I.C. are a
class amongst class and is not based on any rationale or nexus sought
to be achieved and that the classification founded on the so called
intelligible differentia does not distinguish the group that is sought to
be separated as a class. In fact such a stand taken by the State is a
misleading statement, for many a reasons, including the fact that the
so called autonomous status being talked about of I.G.I.C. was never
given any legal cape or jacket till date. There is no separate cadre for
the doctors working in the I.G.I.C. and the doctors belonging to the
Bihar Health Services. They have a common service condition.
There is no separate mode of recruitment or appointment in the
I.G.I.C. In fact, the doctors of Bihar Health Services cadre are picked
up and posted in the I.G.I.C.
14. Till all these things subsist and exist, merely
because some doctors have managed to walk over from the Bihar
Health Service cadre to the so called haloed precinct of I.G.I.C., that
by itself will not create a special or separate class; especially when
transfer and posting to the said Institute is totally in the hands of the
State government. Merely by issuing a notification or posting a person
from the Bihar Health Service Cadre to the said Institute, he cannot
become a separate class by himself. Similarly by posting a doctor
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 14
outside I.G.I.C. or being sent back to the main cadre, he cannot lose
the so called exalted status which he enjoyed earlier, if there is one.
15. Many a documents and annexures have been
brought on record on behalf of the petitioners to show the manner of
posting a person at I.G.I.C. and other service condition including
grant of dynamic A.C.P. etc. etc. All these, according to the
petitioners, points to only one thing that merely taking a plea in the
order of rejection that I.G.I.C. is an autonomous Institution will not
make it an autonomous Institution and a class amongst a class.
16. Petitioners have further submitted that right till
date, there is not a single teacher who has been appointed in I.G.I.C.
in teaching cadre and no teaching is being imparted in the said
Institution. It is neither a super-speciality Institution because that
status has never been acquired or given, whatever be the initial desire
of the government. Merely because there was a resolution which was
drawn up way back on 16.04.1984 and has been made the sheet
anchor of the submissions on behalf of the State, there is nothing
unique about the Post Graduate degree holders of the I.G.I.C. because
there are hundreds of Post Graduate degree holders in the Bihar
Health Services cadre and they are in no manner inferior to the
doctors who are posted in the I.G.I.C.
17. In fact to bolster such an argument, the petitioners
have annexed a complete list of the so called Medical
Personale/Doctors presently posted in the I.G.I.C. which is annexure-
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 15
13 to the writ applications. The chart furnishes details about the
doctors including their qualification which would show that except for
two persons who have post graduate degree in Cardiology, the rest are
all generalists. The so called specialists in other streams have been
drawn up from the pool of the Bihar Health Services cadre. There has
not been any independent recruitment to bolster or strengthen the
Institute with specialists in Cardiology. If that be so, then there is
nothing unique about the so called doctors who are rendering service
in I.G.I.C. merely by managing a transfer or posting there.
18. They also seriously contest the reasoning sought to
be given by the State that there was some kind of urgency in
enhancing the age of retirement of the so called doctors of I.G.I.C.
because they did not want to lose too many experienced and talented
hands by way of retirement.
19. During the course of argument from the materials
contained in annexure-13, it is submitted that the reason so urged is
not reflected from the list of doctors of the Institute because the
retirement was not looming large of any significant number of those
persons working in the said Institute. The only person who was
going to retire on attaining the age of 62 years before the impugned
notification contained in annexure-5 was issued was the Director of
the Institute who was going to attain 62 years of age on 31 st January,
2011. There could be some pressure or compulsion upon the State to
enhance the age of his retirement by issuing a notification on
Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 16
28.01.2011, three days before his retirement by creating a bogey of a class amongst a class. Since the individual could not alone be given benefit of enhanced age of retirement, a desperate effort was made showing I.G.I.C. as a class amongst the class. It was to camouflage the benefit being extended to an individual that the powers that be rushed with the notification, packaged and presented as a decision taken in the interest of the Institute by treating the doctors having Post Graduate Degree of the Institution to be a class amongst class.
20. The above submission that there was some compulsion and urgency in issuing the impugned notification contained in annexure-5 is supported by a significant file noting which has been annexed with the writ application. This is part of the noting when proposal for enhancement of the age of the doctors of I.G.I.C. was placed and processed in the Finance Department. Since the amendment to the Bihar Service Code had to be brought in by the Finance Department of the State, therefore, file noting of the department in question, that too at the level of the Principal Secretary, Finance has significance to the submissions which has been made on behalf of the petitioners. According to them, there was serious objection raised by the Principal Secretary, Finance in his noting dated 25.01.2011 which is three days prior to the actual issuance of the notification contained in annexure-5. The said noting is part of annexure-10 which is reproduced here-in-below:-
5- lEizfr bafnjk xk¡/kh g`n; jksx laLFkku ds fpfdRldksa dh lsokfuo`fRr dh mez Hkh c<+kdj 65 o"kZ Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 17 fd;s tkus dk izLrko fopkjk/khu gSA LokLF; foHkkx ds iz/kku lfpo dh fVIi.kh esa bafnjk xk¡/kh vk;qfoZKku laLFkku vkSj bafnjk xk¡/kh g`n; jksx laLFkku ds fpfdRldksa ds fy, Hkh 'kS{kf.kd laLFkku ekurs gq, rnuqlkj vuq" alk dh xbZ FkhA bafnjk xk¡/kh vk;qfoZKku laLFkku ,d Lok;r laLFkku gS tgk¡ ds cksMZ }kjk izFker% fopkj fd;k tkuk pkfg, vkSj vko';drkuqlkj ljdkj dks izLrko Hkstuk pkfg,A tgk¡rd bafnjk xk¡/kh g`n; jksx laLFkku dk loky gS] LokLF; foHkkx ds er ds vuq:i lays[k izk:i cukdj i=kpkj Hkkx ij j[kk x;k gSA LokLF; foHkkx }kjk izLrko ds vkSfpR; ds laca/k esa dksbZ fVIi.kh ugha nh xbZ FkhA vr% vukSipkfjd rkSj ij laLFkku ds fpfdRldksa dh " 'kS{kf.kd ;ksX;rk] fjfDr;ksa vkSj f'k{k.k dk;ksaZ ds laca/k esa lwpuk ek¡xh xbZA LokLF; foHkkx ds lfpo }kjk laLFkku ls eaxkdj dqN dkxtkr fn, x, gSa ftUgsa lafpdk ds uhps QksYMj esa j[kk x;k gSA dkxtkrksa ls fuEukafdr fLFkfr Li"V gksrh gS %& ¼¼(¼d) laLFkku dh LFkkiuk g`n; jksx ds lqij Lisf'k;fyVh vLirky ,oa 'kS{kf.kd laLFkku ds :i esa fodflr djus ds mn~ns'; ls dh xbZ FkhA 'kS{kf.kd inksa ij dfri; dkj.kksa ls fu;qfDr ugha gqbZ vkSj izfrfu;qfDr ij dk;Zjr fpfdRldksa dks xSj&'kS{kf.kd inksa ds fo:) fu;qDr fd;k x;kA oRrZeku esa dk;Zjr fpfdRldksa dh lwph ls Li"V gksrk gS fd dqy 32 fu;fer fpfdRldksa esa ls ek= 02 fpfdRldksa ds ikl Cardiology ls lacaf/kr Super Speciality dh fMxzh gSA 'ks"k lHkh fpfdRld General Medicine, General Surgery, Paediatrics, Radiology ;k Anaesthesia esa LukrdksRrj fMxzh/kkjd gSA ik¡p fpfdRld rks ek= ,e-ch-ch-,l gSaA ¼¼(¼[k) tgk¡ rd 'kS{kf.kd laLFkku ds :i esa Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 18 ekU;rk nsus dk iz'u gS] laLFkku ds funs'kd us uoEcj] 2010 esa LokLF; foHkkx dks bl vk'k; dk izLrko fn;k gS ftlds lkFk fuEukafdr dkxtkr layXu fd, gSa %& (emphasis mine)
(i) 1992 esa MCI us DM (Cardiology) ds dkslZ ds fy, izfr o"kZ ,d Nk= ds ,Mfe'ku gsrq Lohd`fr nh Fkh; MCI us Teaching staff vkSj Teaching Facilities vi;kZIr gksus ds pyrs M. Ch. dkslZ ds vkosnu dks vLohd`r fd;k FkkA mi;qDZ r Lohd`fr ij fdlh rjg dh dkjZokbZ dh lwpuk ugha gSA
(ii) National Board of Examination us 2003 esa bl vLirky dks izfr o"kZ ,d Nk= ds fy, DNB (Cardiology) gsrq Accredition rhu o"kksZa ds fy, fn;k FkkA jkT; ljdkj us 2007 esa Lohd`fr nhA Li"Vr% 2004&2006 vof/k esa dksbZ dkjZokbZ ugha gks ikbZA ckn dh vof/k ds fy, blls lacaf/kr dksbZ dkxtkr ugha gSA bl laca/k esa vukSipkfjd lwpuk gS fd iVuk ds futh vLirkyksa ;Fkk Mk0 vkj- ,u- flag ds vLirky dks orthopaedics ds fy, rFkk gVZ gkWLihVy dks Cardiology ds fy, DNB gsrq accredition fn;k x;k gSA
(iii) bafnjk xk¡/kh jk"Vªh; eqDr fo'ofo|ky; }kjk Lohd`r dkslZ PG Diploma in Health and Hospital management dks PMCH ds V~;wVj }kjk blh laLFkku esa pyk;k tk jgk gSA LokLF; foHkkx }kjk bl laLFkku dks lqij Lisf" ;fyVh " 'kS{kf.kd laLFkku ?kksf"kr fd, tkus ds izLrko ij dksbZ fu.kZ; vc rd ugha fy;k x;k gSA LokLF; foHkkx }kjk bl laca/k esa fu.kZ; fy, tkus esa dnkfpr dfBukbZ Hkh gksxh tc rd fd lqij Lisf" ;fyVh " 'kS{kf.kd vgZrk ds in visf{kr la[;k esa l`ftr dj muds fo:) rnuq:i fu;qfDr dh dkjZokbZ ugha dh tkrhA (emphasis mine) Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 19 ¼¼(¼x) tgk¡ rd fjfDr;ksa dk iz'u gS] bl laLFkku esa fpfdRldksa dh fjfDr;k¡ cgqr de gS vr% lsokfuo`fRr ls fdlh Lrj ij fpfdRldksa dh deh gksus dh fLFkfr ugha gSA (significant) 6- mi;qDZ r fLFkfr esa tc LokLF; foHkkx us gh bafnjk xk¡/kh g`n; jksx laLFkku dks ,d " 'kS{kf.kd laLFkku ds :i esa ekU;rk ugha nh gS ftldk dkj.k ;g gks ldrk gS fd laLFkku esa Super Speciality Degree /kkjdksa dh la[;k ux.; gS vkSj LukrdksRrj fMxzh okys fpfdRld lSdM+ksa dh la[;k esa LokLF; lsok laoxZ esa gSa] ek= blh laLFkku ds fpfdRldksa dh lsokfuo`fRr dh mez c<+kus dk fu.kZ; HksnHkkoewyd gksxk ;k ugha] bl ij oSf/kd ijke'kZ vko';d gSA fcgkj LokLF; lsok ds in/kkjd Hkh lsokfuo`fRr mez esa o`f) ds fy, iwoZ ls gh ek¡x dj jgs gSa vkSj blds fy, LokLF; foHkkx ij ncko Hkh cuk jgs gSaA (emphasis mine) 'kS{kf.kd laLFkku dh Lohd`fr ds ckn Hkh ;fn lsokfuo`fRr dh mez c<+kus dk fu.kZ; ysus ij fopkj fd;k tkrk gS rks vU; 'kS{kf.kd laoxksaZ ;Fkk nar fpfdRlk f'k{kk laoxZ (tks Dental Council of India ls de-recognition dk [krjk yxkrkj >sy jgk gS) dh lsokfuo`fRr mez c<k, tkus laca/kh ek¡x ij Hkh fopkj djuk mfpr gksxkA mi;qDZ r rF;ksa ds vkyksd esa mfpr izrhr gksrk gS fd lsokfuo`fRr dh mez c<+kus ds fo"k; ij mPp Lrjh; cSBd cqykdj iqufoZpkj fd;k tk, ftlesa egkf/koDrk dks Hkh vkeaf=r fd;k tk,A fu.kZ; esa fcyac gksus ls rc rd esfMdy dkWystksa esa f'k{kdksa dh deh ds pyrs de-recognition dk [krjk u gks] blfy, o"kZ 2011 esa lsokfuo`Rr gksus okys f'k{kdksa dh lsokvksa dk fnlEcj 2011 rd ds fy, lsokof/k foLrkj djus dk fu.kZ; fy;k tk ldrk gSA bl chp lHkh yafcr izksUufr;ksa vkSj fu;qfDr;ksa dks vfHk;ku pykdj iw.kZ Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 20 djk;k tk, vkSj rc leh{kk dj fu.kZ; fy;k tk ldrk gSA bafnjk xk¡/kh g`n; jksx laLFkku ds lqij Lisf'k;fyVh ;ksX;rk izkIr fpfdRldksa ds laca/k esa Hkh ,slk gh fu.kZ; fy;k tk ldrk gSA
21. Learned counsel appearing on behalf of the petitioners after placing the above extract of the noting of the Principal Secretary, Finance Department submits that despite such serious and significant objections having been raised by no less than the Principal Secretary of the Department, who was to notify the amendment, the State has not denied, controverted or explained the noting. If serious objections were raised against the enhancement of age of retirement of only one class, then how were those objections met, explained or over-ruled and at what level has not been demonstrated before the Court or in the affidavits which have come to be filed on behalf of the State. Obviously, an important official holding position of significance, seems to have been over-ruled or given short-shrift because of some-thing which does not meet the eyes, as much has happened obviously between 25.1.2011 and 28.1.2011 when the enhanced age of retirement was notified by way of annexure-5 on 28.1.2011. There is some reflection of a rushed decision, obviously, to extend the benefit of enhanced age of retirement to some body who mattered, which could be the Director of the I.G.I.C. who was superannuating on 31 st January, 2011.
22. At the cost of repetition, learned counsels representing the petitioners again submit that the stand of the State or Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 21 the reason given by the State in annexure-9 that the Institution is an autonomous Institution and is an institution of excellence for teaching is totally belied by the two significant aspects which emerges from the documents itself that till date the State government is still trying to convince the Medical Council of India to permit it to allow teaching in the said Institute which they have not succeeded till date. There are, therefore, neither any faculty appointed so far nor are there any student who can be taught right till date. Attention of the Court has also been drawn to annexure-15 which is dated 26.08.2011 which is an information furnished to one of the petitioners, namely, Smt. Prabha Sinha on an application filed under Right to Information Act before the Health Department, Government of Bihar. The communication has significance because this information has been provided by the Deputy Director-cum-Information Officer of the Department who has this to say :
"izi= ^d* dh dafMdk&3-1 (d) ds laca/k esa dguk gS fd bfUnjk xkW/kh g`n; jksx laLFkku] iVuk ,d Lok;r laLFkku ugha gSA"(emphasis mine)
23. If these are the position on the ground which emerges then the basis for giving enhanced age of retirement to the doctors of the Institute of Cardiology; especially those holding the Post Graduate Degree by creating a class amongst a class falls flat on the ground and, obviously, there is much more to the decision in enhancement of age of handful of doctors at the cost of majority of the doctors belonging to the Bihar Health Service cadre. Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 22
24. To strengthen the case of the petitioners emerging from the factual matrix which has been urged and noted in the earlier part of the order and to establish that the decision of the State government is a hostile discrimination which does not pass the test of reasonableness, reliance has been placed by the petitioners on a much celebrated decision of the Hon'ble Supreme Court in the case of Air India Vs. Nergesh Meerza and others reported in (1981) 4 S.C.C.
335. Attention of the Court has been drawn to paragraph 39 of the said decision which crystallizes the stand of the Hon'ble Apex Court taking note of all the leading decisions of the Court starting from 1952 itself. Since paragraph 39 lays down the principles and propositions in one particular place, it is being quoted here-in-below:-
"Thus, from a detailed analysis and close examination of the cases of this Court starting from 1952 till today, the following propositions emerge:
(1) In considering the fundamental right of equality of opportunity a technical, pedantic or doctrinaire approach should not be made and the doctrine should not be invoked even if different scales of pay, service terms, leave, etc., are introduced in different or dissimilar posts.
Thus, where the class or categories of service are essentially different in purport and spirit, Article 14 cannot be attracted.
(2) Article 14 forbids hostile discrimination but not reasonable classification. Thus, where persons belonging to a particular class in view of their special attributes, qualities, mode of recruitment and the like, are differently treated in public interest to advance and boost members belonging to backward classes, such a classification would not amount to discrimination having a close nexus with the objects sought to be achieved so that in such Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 23 cases Article 14 will be completely out of the way.
(3) Article 14 certainly applies where equals are treated differently without any reasonable basis.
(4) Where equals and un-equals are treated differently, Article 14 would have no application.
(5) Even if there be one class of service having several categories with different attributes and incidents, such a category becomes a separate class by itself and no difference or discrimination between such category and the general members of the other class would amount to any discrimination or to denial of equality of opportunity.
(6) In order to judge whether a separate category has been carved out of a class of service, the following circumstances have generally to be examined:
a. the nature, the mode and the manner of recruitment of a particular category from the very start, b. the classifications of the particular category, c. the terms and conditions of service of the members of the category, d. the nature and character of the posts and promotional avenues.
e. The special attributes that the particular category possess which are not to be found in other classes, and the like. "
25. Yet another decision of significance is the decision of the Hon'ble Apex Court rendered by the Constitution Bench in the case of D.S. Nakara and others Vs. Union of India reported in (1983) 1 S.C.C., 305. Paragraphs 10 to 15 of the said decision is reproduced here-in-below:-
"10. The scope, content and meaning of Article 14 of the Constitution has been the subject- matter of intensive examination by this Court in a catena of decisions. It would, therefore, be merely adding to the length of this judgment to recapitulate all those decisions and it is better to Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 24 avoid that exercise save and except referring to the latest decision on the subject in Maneka Gandhi Vs. Union of India from which the following observation may be extracted : (SCC pp. 283-84, para 7) [What is the content and reach of the great equalizing principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all- embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits. ......Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence........]
11. The decisions clear lay down that though Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification, two conditions must be fulfilled, viz., (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group; and (ii) that that the differentia must have a rational relation to the objects sought to be achieved by the statute in question (see Ram Krishna Dalmia Vs. Justice S.R. Tendolkar). The classification may be founded on differential basis according to objects sought to be achieved but what is implicit in it is that there ought to be a nexus i.e. causal connection between the basis of classification and object of the statute under consideration. It is equally well settled by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.
i. 12. After an exhaustive review of almost all decisions bearing on the question of Article 14, this Court Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 25 speaking through Chandrachud, CJ. In In re Special Courts Bill, 1978 restated the settled propositions which emerged from the judgments of this Court undoubtedly insofar as they were relevant to the decision on the points arising for consideration in that matter. Four of them are apt and relevant for the present purpose and may be extracted. They are: (SCC pp. 424-25, para 72) Xxxx xxxx xxx (3) The constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula. Therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons or things. The courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Classification is justified if it is not palpably arbitrary.
(4) The principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same.
Xxx xxx
xxx
(6) The law can make and set apart the classes according to the needs and exigencies of the society and as suggested by experience. It can recognize even degree of evil, but the classification should never be arbitrary, artificial or evasive. (7) The classification must not be arbitrary but must be rational, that it to say, it must not only be based on some qualities or characteristics which are to be found in all the persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. In order to pass the test, two conditions must be fulfilled, Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 26 namely, (1) that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.
Xxxx xxxx
xxxx
13. The other facet of Article 14 which must be remembered is that it eschews arbitrariness in any form. Article 14 has, therefore, not to be held identical with the doctrine of classification. As was noticed in Maneka Gandhi case in the earliest stages of evolution of the constitutional law, Article 14 came to be identified with the doctrine of classification because the view taken was that Article 14 forbids discrimination and there will be no discrimination where the classification making the differentia fulfils the aforementioned two conditions. However, in E.P. Royappa Vs. State of T.N., it was held that the basic principle which informs both Article 14 and 16 is equality and inhibition against discrimination. This Court further observed as under : (SCC p. 38, para 85) From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.
14. Justice Iyer has in his inimitable style dissected Article 14 in Maneka Gandhi case as under at SCR p.728: (SCC p. 342, para 94) That article has a pervasive processual potency and versatile quality, egalitarian in its soul and allergic to discriminatory diktats. Equality is the antithesis of arbitrariness and ex cathedra ipse disxit is the ally of demagogic authoritarianism.
Only knight-errants of 'executive excesses' - if we may use current cliché - can fall in love with the Dame of despotism, legislative or administrative. If this Court gives in here it gives up the ghost. And Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 27 so it is that I insist on the dynamics of limitations on fundamental freedoms as implying the rule of law: Be you ever so high, the law is above you. Affirming and explaining this view, the Constitution Bench in Ajay Hasia Vs. Khalid Mujib Sehravardi held that it must, therefore, now be taken to be well settled that what Article 14 strikes at is arbitrariness because any action that is arbitrary must necessarily involve negation of equality. The Court made it explicit that where an act is arbitrary it is implicit in it that it is unequal both according to political logic and constitutional law and is, therefore, violative of Article 14. After a review of large number of decisions bearing on the subject, in Air India V. Nergesh Meerza the Court formulated propositions emerging from an analysis and examination of earlier decisions. One such proposition held well established is that Article 14 is certainly attracted where equals are treated differently without any reasonable basis.
15. Thus the fundamental principle is that Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. "
26. Learned counsel representing the State was called upon by the Court to justify the decision contained in annexure-5 which has to be further tested in light of the ground of rejection contained in annexure-9 coupled with the varied materials and submissions made thereon at the Bar virtually demolishing the rationale and the foundation behind extending the benefit to the doctors of I.G.I.C., the so called autonomous Institution or an Institution of excellence, imparting teaching. Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 28
27. Since none of the attributes, according to the petitioners, have been established by the State, merely harping that the Institute is a different class will not do.
28. The sheet-anchor of the argument of the learned counsel representing the State is a resolution of the State government issued under the signature of the then Secretary-cum-Commissioner to the department of Health, Government of Bihar on 16.04.1984. This resolution has been annexed as annexure-1 to the writ application and is also a resolution which is being relied upon by the State in the counter affidavit which has been filed by them. The same notification is annexure-B to the reply on behalf of respondent no. 2 to the I.A. The Court has been taken through the body of the said resolution to show that as far back as on 16.04.1984 there was a resolution of the State government to create the said Institution into an autonomous or independent Institution with the object of making it into an Institution of excellence. This resolution, therefore, is a complete answer to all the submissions which have been made at the Bar on behalf of the petitioners. If the Institute in question has been treated by the State government to be a class by itself, then the plea of discrimination ought not to be entertained, for after all the State does have authority to create a class amongst class if the objective of the same is founded on intelligent differentia and for a better purpose.
29. It is the stand of the State that the government has treated the said Institution to be a different class all along, so they Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 29 have requisite authority and power to issue separate notifications giving a different date of retirement to the so called doctors having Post Graduate degree working in the Institution. Further merely because the notifications enhancing the age of retirement of the doctors as such in the State of Bihar have been issued on different dates, it is not a pointer towards discrimination.
30. This submission is being made in the background that the State government had first notified the enhanced age of retirement for the so called doctors having Post Graduate degree of I.G.I.C., then they decided to grant an enhanced age of retirement to the doctors belonging to the teaching cadre by a separate notification and finally decision of the State to notify the enhanced age of retirement for the entire cadre of Bihar Health Services w.e.f. 22.12.2011. In this connection reliance has been placed on a decision rendered in the case of Transport and Dock Workers Union and others Vs. Mumbai Port Trust and another reported in (2011)2 SCC, 575. The above decision cited has no relevance to the present issue as different dates for different notifications and the power of the government in this regard is not the bone of contention.
31. There cannot be a quarrel that the State does have power to create a class amongst class but before creation of such a class or extending the benefit to the so called created class, at the cost of other similarly placed persons, there has to be foundational material available to justify such a decision. State was free to demonstrate Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 30 before this Court that the reason for a decision contained in annexure- 5 satisfied the touch stone of Article 14 of the Constitution of India if not Article 16 of the Constitution of India.
32. With due respect to the learned counsel for the State if parameters which have been laid down by the Hon'ble Apex Court is applied to the present case then the State fails hopelessly in passing the test or meeting the yard stick which has been noted by this Court in the earlier part of the order, while dealing with the ratio of the case of Nergesh Meerza and D. S. Nakara (Supra). In the opinion of this Court, the test which have been laid down by the Apex Court and the basis of classification is not being met in the present case because there is no incumbent facts available to show and decisively demonstrate that the so called resolution of the Health Department issued in the year 1984 contained in annexure-1 to the writ application was ever carried forward and implemented in letter and spirit. There could have been an occasion for the State to decide in principle, to give I.G.I.C. an exalted position but mere wish by itself does not give the Institution the status of an autonomous body or an Institution of excellence if there is still material to show that the Department of Health does not treat the said Institution to be an autonomous Institution when information provided by the Health Department under Right to Information Act annexed as annexure -15 is looked into, as well as when there are materials to show that till date the Institution is still to get an identity of its own including in the field of Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 31 teaching as no recognition has been given by the Medical Council of India till date. Even the State Government has not taken any steps by resorting to any legislation or any enactment including notification of any rule to grant to this Institution an autonomous status with the objective of creating an Institution of excellence. There cannot be a better example of that failure since there are materials to show that despite 28 years having gone past since issuance of annexure-1, there is no separate rule for recruitment, appointment or service condition for the so called doctors or employees of the I.G.I.C. Though the said Institution was carved out from the Patna Medical College and Hospital but still appointments are being made from the talent drawn from the general pool of the Bihar Health Services cadre.
33. The Court, therefore, categorically records that the State Government has failed to establish that the doctors; especially Post Graduate degree holders of I.G.I.C. are a class apart from the Doctors of Bihar Health Services. Merely labeling a group of doctors as a class amongst class will never satisfy the test of reasonableness as declared by the Hon'ble Apex Court.
34. There is a complete failure on the part of the State to meet the standards of the requirement of the test of reasonableness in creating a class amongst class in matter of extending the benefit of enhancement of age of retirement to the doctors of I.G.I.C. vis-à-vis the doctors of Bihar Health Services.
35. On examination of all the materials and the Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 32 contentions which have been noted in the earlier part of the order, there is only one conclusion which can be reached and that is that hostile discrimination was practiced by the State in enhancement of age of retirement for a handful of the doctors working in I.G.I.C. vis- à-vis the doctors of the Bihar Health Services. The reasonings given in annexure-9 do not satisfy the test of reasonableness. The Court to some extent is in agreement with the submission of the learned counsels for the petitioners that the reason for issuance of annexure-5 could be for other reason. The so called plea of a separate class amongst class is a ploy to cover up the discrimination caused to the petitioners in matter of change of their service conditions, though they all belong to the same speecy and class i.e. Bihar Health Services Cadre.
36. To sum, these writ applications are allowed. Keeping in view the ongoing protection which was extended in these writ applications by virtue of the order dated 27.06.2011 all these petitioners shall be taken back in service if they are Post Graduate and have retired on and after 28.1.2011. Since the State has already enhanced the age of retirement of all the doctors belonging to the Bihar Health Services w.e.f. 22.12.2011, the issue, therefore, is confined to those doctors who were made to retire after 28.1.2011 and before coming of the notification dated 22.12.2011 contained in annexure- 17.
37. The Court makes it clear that this benefit will only Patna High Court CWJC No.9653 of 2011 dt.14-02-2012 33 accrue to the retirees having Post Graduate degree effective from 28.1.2011 when annexure-5 was issued. They shall be treated to be in service till they reach the age of superannuation which has now been fixed to be 65 years. They shall be entitled to all the benefits of service including payment of their salary etc. as if they did not superannuate on reaching the age of 62 years.
38. The Court also further clarifies that none of these petitioners or beneficiaries can claim, as a matter of right, a place or station of posting which they were holding at the time of their superannuation at 62 years. It is left in the hand of the State to decide as to where their services can be utilized, depending on their seniority and experience in this regard.
39. All these writ applications are allowed. Annexure- 9 dated 24.06.2011 rejecting the claim of the petitioners for enhancement of age stands quashed. Annexure-5 is read down to mean that the age of retirement of these petitioners also shall be 65 years instead of 62 years. That is the only way annexure-5 can be saved from the test of unreasonableness and or else it was liable to be struck down but then it would have created an anamolous situation.
(Ajay Kumar Tripathi, J) Patna High Court The 14th February, 2012 AMIN/ (A.F.R.)