Jharkhand High Court
Dr. Jyotish Chandra Singh; vs The State Of Jharkhand on 8 August, 2018
Author: S.N. Pathak
Bench: S. N. Pathak
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P. (S) No. 4071 OF 2017
1. Dr. Jyotish Chandra Singh;
2. Dr. Ravindra Rai;
3. Dr. Savita Kumari;
4. Dr. Md. Jasimuddin;
5. Dr. Umesh Prasad Gupta;
6. Dr. Prem Kumar ... ... Petitioners
VERSUS
1. The State of Jharkhand
2. Principal Secretary, Health and Family Welfare
Department, Govt. of Jharkhand, Ranchi
3. Secretary, Finance, Government of Jharkhand, Ranchi
4. Director, Health and Family Welfare Department,
Government of Jharkhand, Ranchi
5. Director, AYUSH, Xaviers' School Road, Doranda,
Ranchi
... ... Respondents
CORAM: HON'BLE MR. JUSTICE DR. S. N. PATHAK
For Petitioners : Mr. Rajiv Ranjan, Sr. Advocate
Mr. Shray Mishra, Advocate.
For the State: Ms. Bharti Singh, AC to SC-III
I.A. No. 837 of 2018
06/08.08.2018 I.A. No. 837 of 2018 is on board.
Present Interlocutory Application has been filed by the petitioner no. 1 - Dr. Jyotish Chandra Singh, Petitioner No. 5 - Dr. Umesh Kumar Gupta and petitioner no. 6 - Dr. Prem Kumar who were to retire on 31.01.2018 .
In view of the fact that this Interlocutory Application has now become infructuous and the writ petition itself is being disposed of, the same is dismissed as not pressed.
RC 2 W.P. (S) No. 4071 OF 2017 Heard learned counsel for the parties.
2. Petitioners working as doctors in the Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy, are aggrieved by inaction on part of the respondents
- State in not treating their cadre at par with the Allopath Doctors so far as age of their retirement is concerned and therefore have prayed for a direction upon the respondents to enhance their age of retirement as 65 years i.e. at par with the age of retirement of Allopath Doctors.
3. The fact of the case in brief is that National Rural Health Mission [hereinafter referred as 'NRHM' in short] was launched on 12.04.2005 primarily with a motive of decentralization, communitisation, organizational structural reforms in health sector, inter-sectoral convergence, public private partnership in health sector, mainstreaming Indian system of medicines under Ayurveda, Yoga, Unani, Sidha and Homeopathy (AYUSH), induction of management and financial personnel into health care management and delivery system. There are 237 sanctioned posts of Ayurveda Medical Officers out of which only 47 doctors are presently working and rest are lying vacant. For Homeopathy, there are 104 sanctioned posts but only 19 doctors are working at present. Similarly, out of 47 sanctioned posts, only 5 doctors are working as Unani doctors.
4. It is case of the petitioners that pursuant to the notification dated 15.09.2016 (Annexure-3), a decision had been taken by the State of Jharkhand whereby the two cadres i.e. Allopath and AYUSH Health Services had been accorded equal status. Pursuant to the decision of Government of India vide order dated 31.05.2016 (Annexure-5), the age of retirement of Central Health Services has been enhanced from 60 to 65 years and in view thereof, a decision has been taken by the State of Jharkhand to enhance the age of retirement of Allopath Doctors. It is case of the petitioners that while enhancing age of retirement, the doctors of RC 3 AYUSH health Services have been left out whereas the age of retirement of Allopath Doctors have been enhanced from 60 to 65 years ignoring the fact that the State has given equal status to the doctors of both cadre.
5. Mr. Rajiv Ranjan, learned Sr. Counsel assisted by Mr. Shray Mishra urges that the Doctors of Allopath belong to Jharkhand Health Services whereas Doctors of AYUSH belong to Jharkhand AYUSH Health Services and in terms of Notification dated 15.09.2016, the two service (cadre) have been granted equal status but in an illegal and arbitrary manner while enhancing the age of retirement of Allopath Doctors, the cadre of AYUSH Doctors have been left out. Learned Sr. Counsel submits that in view of their own notification, the Doctors of two services are to be treated at par in all respects including the age of retirement. There cannot be any discrimination amongst the same class of employment. By referring Annexure-6 to the writ petition, learned counsel has drawn attention of this Court to a decision rendered by the Hon'ble Patna High Court in the case of Dr. Sarfe Alam Vs. State of Bihar, learned counsel submits that the Hon'ble Court has clearly held that none grant of similar benefits to another wing of Indigenous medicine would be violative of Articles 14 and 16 of the Constitution of India. Learned counsel has further drawn attention of this Court towards Annexure-7 of the writ petition and submits that in the case of Dr. Ramesh Chandra Prasad Vs. State of Bihar passed in C.W.J.C. No. 1656 of 2008, the Hon'ble Court has directed the Principal Secretary of Health Department to reconsider case of the petitioners therein for fixing their age of superannuation as also extend them the same benefits which has been given to their counter-part in Allopathic Medicine with effect from November, 2007 and in fact also to other doctors in Ayurvedic, Homeopathic or Unani discipline with effect from 1st February, 2009. Learned counsel further submits that the Letters Patent Appeal preferred against the abovementioned Judgments had been dismissed and in compliance thereto, vide Notification dated 30.07.2015, the age RC 4 of retirement of AYUSH Doctors in the State of Bihar had been enhanced. Learned Sr. Counsel further submits that as of now, after decision of the State of Bihar in the year 2015, the age of retirement of Doctors of Allopath as well as AYUSH has been enhanced to 67 years, which has been brought on record vide Annexure-9 to the writ petition. Learned counsel has further drawn attention of this Court towards web release of the State of Madhya Pradesh, which has been anenxed as Annexure-2 to the Rejoinder dated 06.04.2018 and submits that even in the State of Madhya Pradesh age of superannuation of all government doctors have been enhanced. Similarly, the State of Chhatisgarh has also taken a decision to enhance the age of superannuation of all government doctors from 62 to 65 years, which would be evident from the notification dated 11.09.2007 and the same has been brought on record vide Annexure-1 to the rejoinder dated 09.04.2018. Learned Sr. Counsel submits that the services of Allopath Doctors as well as AYUSH Doctors are treated at par in the State of Bihar as well as in the State of Jharkhand and in that view of the matter once the age of retirement of Allopath Doctors have been enhanced, the same and similar benefits should be given to the doctors of AYUSH. Learned Sr. Counsel submits that it is undisputed that the doctors of both the wing are working for upliftment of health services in the State. Learned Sr. Counsel further submits that there is no reasoning provided by the respondents - State in not enhancing the age of retirement of doctors working under AYUSH whereas the age of retirement has been enhanced so far as Allopathic doctors are concerned ignoring the fact that as per notification of the State, both have been granted equal status. Learned Sr. Counsel further submits that only by amending Rule 73 of the Jharkhand Service Rule so far as it relates to Allopathic Doctors working under the Health, Medical Education and Family Welfare Department and excluding the doctors working under AYUSH, the respondents cannot justify their action. Learned Sr. Counsel further submits that service rules for AYUSH Doctors and the services are being RC 5 guided by the Bihar Service Rules, clause-73 as adopted by the State of Jharkhand and at the same time the Allopathic doctors working under the Health, Medical Education and Family Welfare Department are also being guided by the Bihar Service Rules and as such, there ought to have been parity when age of superannuation is amended for the Allopathic Doctors. The respondents should have framed service rules for the doctors working under the Health, Medical Education and Family Welfare Department including both AYUSH doctors, but the same has not been done.
6. Per contra counter affidavit has been filed by the respondents.
Ms. Bharti Singh, AC to learned SC-III submits that pursuant to the Resolution No. 283, dated 23.07.2011, the Government of India enhanced the age of superannuation of the Allopathic Health Services Cadre from 60 to 65 years after amending Rule-73 of the Jharkhand Service Code and taking into account the various factors and the need for such increase in the age of superannuation of the Allopathic Doctors. Learned counsel submits that even the age of superannuation of other equivalent officers of different cadres of the State of Jharkhand has not been increased/ raised and any Resolution issued by the State of Bihar is not at all applicable within the State of Jharkhand. Learned counsel has further drawn attention of this Court towards the letter of the Department of Personnel and Administrative Reforms, Government of Jharkhand, which has been annexed as Annexure-B to the supplementary counter affidavit dated 27.03.2018 wherein the Department has advised not to raise age of retirement of AYUSH Doctors and has further advised for need based re-employment after their retirement. Learned counsel further submits that the service condition of doctors of AYUSH and Allopath are different and as per policy decision of the State the age of superannuation of Allopath Doctors have been increased and as such, this writ petition has no merits and fit to be dismissed.
RC 6
7. I have heard counsel for the parties and perused the records. From the pleadings made in the writ petition as well as arguments advanced by counsel for the parties, I find force in the submission advanced by learned counsel for the petitioners. The Government itself has issued the notification dated 15.09.2016 (Annexure-3) whereby decision had been taken by the State of Jharkhand and the two cadres i.e. Allopath and AYUSH Health Services had been accorded equal status and as such, now the plea taken by the respondents that the age of superannuation of the AYUSH doctors cannot be enhanced from 60 to 65 years is not justified. In the case of Dr. Ramesh Chandra Prasad Vs. State of Bihar passed in C.W.J.C. No. 1656 of 2008 and other analogous cases, the Hon'ble Patna High Court has dealt with the similar matter and the relevant para 16 to 20 is relevant to be produced here.
"16. The Apex Court again in the case of Rajat Baran Roy vs. State of W.B., reported in (1999) 4 SCC 235, had held that the doctors of two services are to be treated at par in all respects and the retirement age would automatically become applicable as given in one service. Thus, it would be clear from the aforesaid judgment of the Apex Court that the parity of service condition including the matter of superannuation maintained for a long spell of time should not be disturbed.
17. Here also the State Government has in fact maintained the same parity by allowing the same age of superannuation for the doctors of all the disciplines being Allopathic, Homeopathic, Ayurvedic or Unani. It is only by issuance of a notification for Allopathic doctors in November, 2007 and for rest of them of Indigenous Medicine i.e. Ayurvedic, Homeopathic or Unani in February, 2009 the age of retirement has been extended from different dates which has become the bone of contention. The Government, therefore, having maintained the parity for all the doctors should not have ordinarily fixed two different dates of retirement unless there are compelling reasons for the same. Nothing, however has been brought on record by the respondents in their counter affidavfit for fixing the two separate dates for enhancement of age of retirement, 62 years of age of retirement for the doctors of Allopathic Branch in November, 2007 and same 62 years of age of retirement for the doctors of Indigenous Medicine in February, 2009. It has to be kept in mind that all the parity including pay scale and the service conditions for all these doctors have been almost identical in view of the recommendation and its acceptance of Pay Revision Committee Reports.
RC 7
18. Thus, this Court would find it necessary to issue a direction to the Principal Secretary of the Health Department to reconsider the case of the petitioners for fixing their age of superannuation as also extend them the same benefit which has been given to their counter-part in Allopathic Medicine with effect from November, 2007 and in fact also to other doctors in Ayurvedic, Homeopathic or Unani discipline with effect from 1st February, 2009. As noted above, these are very few and stray cases which would entitle hardly a dozen of persons like the petitioners to get benefit of two years extended service but if done so, it would still augur well for the Respondents embedded to the concept Welfare State which has duty to not only act reasonably but in the best of tradition of a model employer.
19. This Court would, accordingly, direct the Principal Secretary of the Health Department to obtain the order of the State Government as with regard to individual grievance of the petitioners as raised in these writ applications at an early date.
20. In order to expedite the matter, this Court would give liberty to the petitioners to file their individual representations placing on record the relevant facts and it is expected that the Principal Secretary of the Health Department will obtain the order of the State Government within three months of filing of such a representation and the consequential benefits, if any, will also be extended to them within next three months from the date of taking of such decision."
8. As a cumulative effect of the aforementioned facts, submission of the parties as well as judicial pronouncements, this court is of the considered opinion that the doctors of two services are to be treated at par in all respects and the retirement age would automatically become applicable as given in one service. The parity of service condition including the matter of superannuation maintained for a long spell of time should not be disturbed by the respondents. The State Government had in fact maintained the same parity by allowing the same age of superannuation for the doctors of all the disciplines being Allopathic, Homeopathic, Ayurvedic or Unani but by issuance of a notification for Allopathic doctors vide Memo No. 283, dated 23.07.2011 while enhancing age of retirement of doctors of Allopath from 60 to 65 years, the similar benefits have been denied to the AYUSH Doctors which has become bone of RC 8 contention in the instant writ petition. The Government, therefore, having maintained the parity for all the doctors should not have ordinarily fixed two different age of retirement unless there are compelling reasons for the same. Nothing, however has been brought on record by the respondents to justify their stand.
9. Thus, this Court would find it necessary to issue a direction to the Principal Secretary of the Health Department to reconsider the case of the petitioners for enhancing their age of retirement from 60 to 65 years as has been done in case of their counterparts in Allopathic Medicine. I, therefore, direct the Principal Secretary of the Health Department to obtain the order of the State Government as with regard to individual grievance of the petitioners as raised in the writ application as expeditious as possible. In order to expedite the matter, this Court would give liberty to the petitioners to file their individual representations placing on record the relevant facts and it is expected that the Principal Secretary of the Health Department will obtain the order of the State Government within three months of filing of such a representations.
10. The writ petition stands disposed of with aforesaid observations and directions.
(Dr. S.N. Pathak, J.) RC