Orissa High Court
Dr. Bikartan Das vs Association Of on 17 December, 2020
Author: S. Panda
Bench: S. Panda
W.P.(C) No.30620 OF 2020
Dr. Bikartan Das ... Petitioner
Vrs.
Union of India and Others ... Opp. Parties
05. 17.12.2020 This matter is taken up through video
conferencing.
The Writ Petition has been filed by the
petitioner, who is claiming to get the benefit of
extension of superannuation age to 65 like the
AYUSH doctors, though he is employed in
Central Council for Research in Ayurvedic
Service under the Ministry of AYUSH. The
instant Writ Petition is directed against the
order dated 02.11.2020 passed by the Central
Administrative Tribunal, Cuttack Bench,
Cuttack in O.A. No. 210 of 2018 wherein the
learned Tribunal has dismissed the said O.A.
filed by the petitioner.
The petitioner was initially appointed
vide Order dated 11.10.1985 as Research
Assistant (Ayurveda) by the Central Research
Institute (Ayurveda) at Unit-1, Bhubaneswar
with effect from forenoon of 07.10.1985. The
main issue flagged by the present petitioner is,
with respect to the applicability of the
Notification dated 11.08.2018 issued by the
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Ministry of Personnel Public Grievance and
Pension which is titled as Fundamental (Second
Amendment) Rules 2018 dealing with the
extension of superannuation age of Ayush and
other categories of doctors to 65 years.
Learned counsel for the petitioner, Mr.
Ashok Mohanty, Sr. Advocate, invited our
attention to the Memorandum of Association
(MoA) about the Rules, Regulations and bye-
laws issued by the Central Council for Research
in Ayurvedic Sciences under the Ministry of
AYUSH, Department of AYUSH, Government of
India, New Delhi.
He further submits that Clauses-34 & 35
of the said bye-laws deal with superannuation
and prescribes that the Fundamental and
Supplementary Rules and General Financial
Rules of Government of India as amended from
time to time shall apply mutatis mutandis to
employees of the Central Council.
He further submits that the petitioner
is an AYUSH doctor, though he was initially
appointed as Research Assistant (AY),
subsequently he was promoted to Research
Officer and later he was promoted to the post of
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Assistant Director (Ay.), Central
Ayurvedic Research Institute for Hepatobiliary
Disorders, Bharatpur, Bhubaneswar. Since he
is actively engaged in treating the Out Patient
Departments (OPD) and In-Patient Departments
(IPD), he is attending all the duties pertaining
to treating patients in OPD clinic along with his
research activities. The petitioner's Institute
serves public through its OPD service along
with 50 bedded IPD facilities and he regularly
serves them. Further, he pointed out that the
petitioner's Institute has treated 91329 patients
in OPD level and 1798 number of patients in
IPD level during last five years, which clearly
establishes the fact that the petitioner is
attending the patients both the Out Patient
Departments and In-Patient Departments. He
also relied on the judgment passed by Delhi
High Court in Dr. Salma Khatoon Verses
Union of India1 which he claims it squarely
covers the case of the petitioner. We, however,
checked the said order and find that the said
petition is still pending before the High Court of
Delhi.
1 WP(C) No. 9554 of 2018 (Delhi HC)
4
He, thus, pointed out that all practical
purposes, the petitioner has been designated as
Research Officer, he has also performed the
duty of doctor. Therefore, the policy decision
which was taken by Union Government to
extend the age of retirement to 65 years would
be applicable to the petitioner.
Though, it has been clearly indicated in
the said order that doctors shall hold the
administrative posts only till the date of
attaining the age of 62 years as per the
notification dated 11.08.2018 issued by the
Ministry of Personnel, Public Grievances and
Pensions, (Department of Personnel and
Training) Government of India, the
superannuation age in respect of the doctors
enumerates that:-
In the Fundamental Rules, 1922, in rules
56, for clause (bb), the following shall be
substituted, namely:-
"(bb)(i) The age of superannuation in
respect of the doctors belonging to -
(i) Central Health Service;
(ii) Indian Railways Medical Service;
(iii) AYUSH and working under the
Ministry of AYUSH;
(iv) Civilian doctors under the
Directorate General of Armed
Forces Medical Service;
(v) Medical Officers of the India
Ordnance Factories Health
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Service;
(vi) Dental Doctors under the
Department of Health and Family
Welfare;
(vii) Dental doctors under the Ministry
of Railways; and
(viii) General Duty Medical Officers,
Specialist Grade doctors and
Teaching Medical Faculty working
in Bhopal Memorial Hospital and
Research Centre,
Shall be sixty-two years unless they
exercise the option of posting to Teaching,
Clinical Patient Care, Implementation of
Health programmes, Public Health
programmes and functions including
advisory and consultancy depending on
their expertise and experience, as decided
by the competent authority in the
concerned Ministry or Department from
time to time, in case they desire to
continue in their service upto the age of
sixty-five years:
Provided that the age of superannuation
in respect of the doctors belonging to the
General Duty Medical Officers sub-cadre
of Central Armed Police Forces and Assam
Rifles and specialist Medical officers of
Central Armed Police Forces and Assam
Rifles shall be sixty-five years.
Mr. P. K. Parhi, learned counsel for
Union of India brought before this Court that
the Ministry of AYUSH, Government of India
has enhanced the age of superannuation to 65
years with effect from 27.09.2017 for AYUSH
doctors and the petitioner does not fall in that
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category to get the benefit of extension of age
for superannuation.
Mr. Parhi, further submitted that the
petitioner's induction to the service was as
Research Officer in Ayurveda and he has been
promoted to the post of Director, Central
Ayurvedic Research Institute for Hepatobiliary
Disorders (CARIHD), Bharatpur, Bhubaneswar,
which is the institute under the Council for
Research in Ayurvedic Sciences and it is an
autonomous body, registered under the Society
Registration Act, 1860, though it is
administratively controlled by the Ministry of
AYUSH, Govt. of India. It is a body for
undertaking, coordinating, formulating,
developing and promoting research on scientific
liens in Ayurvedic Sciences.
He further states that the recruitment
Rules, procedure, term and service of its
employees are governed by the bye-laws and
Memorandum of Association of Council. The
decisions of CCRAS are taken by Governing
Body of CCRAS. The Research
Officer/Assistant Director in Research Councils
are conducting research on diseases etc. and
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doing observational studies. Hence, the
mandate and objective of the Council is not
patient care but conducting research on
Ayurvedic parameters and formulations. Of
course, during the process of that research,
sometimes treating the OPD and IPD patients
are the integral part of the research
curriculum. Hence, treating them as AYUSH
doctors is erroneous. So, enhancement of their
superannuation age to 65 years is totally
against the mandate of law.
Learned counsel for the Opposite Parties
also submits that the amendment of
Fundamental Rules, 1922, in rule 56, does not
mention that the age of superannuation for the
autonomous organization like the petitioner's
organization shall be 65. The superannuation
age enhanced to 65 years has been clearly
enunciated in that Fundamental Rules, 1922. It
is, therefore, clarified that the Fundamental
Rules, 1922, in rule 56 is not applicable to the
present petitioner. The Rule 56 reads as
under:-
"F.R.56(a) Except as otherwise
provided in this rule, every
Government servant shall retire from
service on the afternoon of the last
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day of the month in which he
attains the age of sixty years:
Provided that a Government servant
whose date of birth is the first of a
month shall retire from service on the
afternoon of the last day of the
preceding month on attaining the age
of sixty years."
The decision of the Cabinet is applicable
to the AYUSH doctors, who are directly working
under the administrative control of Ministry of
AYUSH i.e. AYUSH doctors working under
CGHS. The said decision is not applicable to
autonomous bodies functioning under the
Ministry of AYUSH i.e. Research
Councils/National Institutes. The Fundamental
Rule prescribed under Clause 56(a) is
applicable to all employees of CCRAS including
the petitioner and Rules 56(bb) is not
applicable to the present petitioner, even
though, the appointing authority and
recruitment Rules are not same for both the
categories.
He also invited our attention to the MoA
about Rules and as far as the case in hand is
concerned, the learned counsel for the Union of
India submitted that the letter dated
31.10.2017 issued by the Ministry of AYUSH to
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the Director General, CCRAS, New Delhi
clarifies that 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 and it is not applicable to any
autonomous bodies like Research
Councils/National Institute functioning under
the Ministry of AYUSH. The said letter is
reproduced herein below: -
FTS No. 32797 of 2017
Ministry of Ayurvedic Yoga & Naturopathy, Unani, Siddha &
Homoeopathy (AYUSH)
(Research Desk)
'B' - Block, GPO Complex,
AYUSH Bhawan, Behind the INA Market,
New Delhi - 110 023
Dated: 31st October, 2017
To
The Director General,
CCRAS and CCRUM
61-65, Institutional Area, Opposite "D" Block,
Janakpuri, New Delhi - 110 058.
Subject :- Enhancement of superannuation age to 56 years -
reg.
Sir,
I am directed to say that the Ministry has been receiving a
number of representations from various officials of the
Councils regarding Enhancement of superannuation age to 65
years. It is stated that as per Press Information Bureau the
Union Cabinet has taken the following decisions:-
"The superannuation age has been enhanced to 65 years
in respect of doctors under the administrative control of the
respective Ministry/Department [M/o. AYUSH (AYUSH
Doctors), Department of Defence (civilian doctors under
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Directorate General of Armed Forces medical Service),
Department of Defence Production (Indian Ordnance
Factories Health-Service Medical Officers), Dental Doctors
under D/o Health & Family Welfare, Dental doctors under
Ministry of Railways and of doctors working in Higher
Education and Technical Institutions under Department of
Higher Education]".
2. 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 Institute.
3. All such representations are therefore being sent to the
respective Councils. It is requested that the Councils may
inform them accordingly.
Yours faithfully,
Sd/-
(N. K. Lakhanpal)
Senior Consultant
The General Duty Medical Cadre of
CGHS, are selected through UPSC whereas the
petitioner has been recruited directly by the
Council. It is, therefore, the extension of the age
of superannuation is not automatically
applicable to the Medical Officers of CCRAS.
Learned counsel for the Union of India
also relied on the judgment dated 31.10.2019
in W.P.(C) No.4115 of 2014 filed by the Union
of India and Another vs. Association of
Employees of Indian Institute of Mass
Communication2, wherein the Delhi High
Court has dealt with the issue of applicability of
2 WP(C) No. 5115 of 2014
11
CCS (Pension Rules 1972) to autonomous
bodies and held that the said Pension Rule is
not applicable to the employees of the
autonomous bodies until or unless it is adopted
by the Memorandum of Association (MoA) of the
said autonomous body. The said order also
travelled upto the Supreme Court and the same
view point has been confirmed.
On the analysis of the above factual
matrix, we find that though the petitioner is
functioning as Researcher under the Research
Council/National Institute, but as requirement
for upgrading the research skill, he treats
patients in the OPD and IPD. In fact, he
performs similar nature of duties like AYUSH
doctor. Though his service condition is covered
by different laws, but for all practical purposes,
the petitioner is performing like a doctor.
Though there is a clear-cut distinguishing
features between the AYUSH doctor and that of
the petitioner. The petitioner herein is also
treating the patients like AYUSH doctors in
OPDs and IPDs on regular basis.
The Clause-34 and 35 of the bye-laws
extends the force of the argument of the
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petitioner to be treated as AYUSH doctor,
even though he has been appointed as
Researcher.
Clauses-34 & 35 of the said bye-laws deal
with superannuation which read as under:
"34. The rules governing the retirement of
employees of the Government of India as
amended from time to time or as desired
by the Governing Body shall apply to the
employees of the Central Council. Provided
that an employee can be retired in service
after prescribed age of superannuation if
he continues to be physically fit and
efficient and it is in the interest of the
Central Council to retain him in service.
35. The Fundamental and Supplementary
Rules and General Financial Rules of
Government of India as amended from time
to time shall apply mutatis mutandis to
employees of the Central Council."
In view of the above, we are of the opinion
that the view taken by the learned Tribunal vide
its decision dated 02.11.2020 is erroneous.
The learned CAT, Cuttack Bench, Cuttack
has failed to consider the petitioner's duty and
devotion in treating the OPD and IPD patients.
Hence, the order dated 02.11.2020 passed by
the learned CAT, Cuttack Bench, Cuttack is
liable to be quashed and accordingly, it is
quashed.
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In view of the above discussions,
this Writ Petition is accordingly allowed and
pending applications, if any, stand disposed of.
The petitioner may utilize the soft copy
of this order available in the High Court's
website or printout thereof at par with the
certified copies in the manner prescribed vide
Court's Notice No.4587 dated 25.03.2020.
.............................
S. Panda, J.
................................. S. K. Panigrahi, J. AKK/AKP