Ranchi, Jharkhand v. 1
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI (Letters Patent Appellate Jurisdiction) LPA No. 496 of 2019 ------ The Principal Secretary, Health and Family Welfare Department, Govt. of Jharkhand having its office at Nepal House, PO & PS: Doranda, District: ... Ranchi, Jharkhand. … Appellant Versus 1. Dr. Jyotish Chandra Singh, son of Late Chandra Shekhar Singh, resident of Vikash Nagar, Road No.3, Latma Road, Singhmore, PO: Hatia, PS: Jagarnathpur, District: Ranchi, Jharkhand 834003; 2. Dr. Ravindra Rai, son of Sri Ram Beyas Rai, resident of Block A/6B, Green Garden Apartment, PO: Hatia, PS: Jagarnathpur, District: Ranchi, Jharkhand-834003; 3. Dr. Savita Kumari, daughter of Late Ramlagan Bhagat, resident of Moh: Jaiprakash Nagar, Near Bum Kali Mandir, PO & PS: Godda, District: Godda, Jharkhand-814133; 4. Dr. Md. Jasimuddin, son of Late Abdul Rahman, resident of Moh: Galokhar Road, PO: Pelawal, PS: Katkamsandi, District: Hazaribagh, Jharkhand. 5. Dr. Umesh Prasad Gupta, son of Late Ramdeo Pd. Gupta, resident of village: Moh: Duplex No.30, Dev Villa, Post Office Rd. Mango, PO & PS: Mango, District: East Singhbhum, Jharkhand; 6. Dr. Prem Kumar, son of Sri Rajeshwari Prasad Gupta, resident of village+ PO & PS: Hiranpur, District: Pakur, Jharkhand; 7. The State of Jharkhand through the Chief Secretary, Govt. of Jharkhand having its office at Project Bhawan, PO & PS: Dhurwa, District: Ranchi, Jharkhand; 8. Secretary Finance, Govt. of Jharkhand having its office at Project Bhawan, PO & PS: Dhurwa, District: Ranchi, Jharkhand; 9. Director, Health and Family Welfare Department, Govt. of Jharkhand having its office at Nepal House, PO & PS: Doranda, District: Ranchi, Jharkhand; 10. Director, AYUSH, Xaviers School Road, Nizam Nagar, PO: GPO, PS: Lower Bazar, District: Ranchi, Jharkhand (834001)… Respondents -------
Legal Reasoning
CORAM : HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON’BLE MR. JUSTICE RATNAKER BHENGRA ------ For the Appellant : Mr. Manish Kumar, Sr.S.C.-II; Mr. Mohammad Asghar, AC to Sr.S.C.-II For the Respondents : Mr. Shray Mishra, Advocate Order No. 08/Dated: 17 th July, 2023 ------ This Letters Patent Appeal has been filed with delay of 344 days in which IA No. 7195 of 2019 under section 5 of the Limitation Act has been filed for condoning the delay in filing the present Letters Patent Appeal wherein the appellant has made the following statements: “4. That after detailed hearing of W.P.(S). No. 4071 of 2017, the 2 LPA No. 496 of 2019 Hon'ble Court pronounced the judgment on 08.08.2018. 5. That the impugned order was received by the Department in time and thereafter, the concerned department sent file to the higher authorities for seeking opinion to file the Letters Patent Appeal before the Hon'ble Court. 6. That the aforesaid all procedures has been taken time to file Letters Patent Appeal before the Hon'ble Court. 7. That the appellant thereafter, approached the concerned Law Officer for filing the Letters Patent Appeal with all necessary documents before the Hon'ble Court. 8. That thereafter the memo of appeal was prepared which was vetted by the department. 9. That the actual delay is roughly around 344 days and the grounds mentioned above is genuine.” 2. Six persons who were working as doctors in the Department of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homeopathy approached the writ Court with a grievance that their age of superannuation should be at par with other doctors holding MBBS degree. 3. Before the writ Court, the orders passed by the Patna High Court titled “Dr. Sarfe Alam v. State of Bihar” in CWJC No. 10431 of 2012 and “Dr. Ramesh Chandra Prasad v. State of Bihar” in CWJC No.1656 of 2008 have been referred to justify the claim of the writ petitioners for enhancement of the age of retirement from 60 to 65 years. The respondents, however, in their counter-affidavit dated 27th March 2018 relied on the opinion of the Department of Personnel and Administrative Reforms, Government of Jharkhand to object to the prayer seeking enhancement in the age of retirement. 4. The writ Court has adjudicated the claim for enhancement in the age of retirement in the following manner: “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 3 LPA No. 496 of 2019 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. 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 4 LPA No. 496 of 2019 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 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.” 5. As it would appear from the materials on record, the writ petitioners out of whom Dr. Jyotish Chandra Singh, Dr. Umesh Kumar Gupta and Dr. Prem Kumar have already superannuated on the date of writ Court's order were appointed in the National Rural Health Mission Programme which was launched with a view to effect organizational reforms in health sector. 6. In “North Delhi Municipal Corporation v. Dr. Ram Naresh Sharma & Ors.” 2021 SCC OnLine SC 540 a similar issue came before the Hon'ble Supreme Court which has been elaborately dealt with in paragraph nos. 22 & 23 which read as under: “22. In the case of the respondent in SLP (C) 12046/2019 i.e. Dr. H. P. Singh, it is averred by the appellants, that he has not worked after superannuation on attaining the age of 60 years. But, there is sufficient evidence on record to suggest that the respondent- doctor through several representations sought to be re-appointed but it was the employer who created impediments and did not allow the respondent to re-join his duties in hospitals. In such circumstances, the principle of ‘No Work, No Pay’ cannot be raised by the employers, as it is they who had obstructed the doctor from discharging his service. For support we may cite Dayanand Chakrawarthy v. State of Uttar Pradesh where this Court speaking through Justice S. J. Mukhpadhyaya rightly held that: 5 LPA No. 496 of 2019 “48. … If an employee is prevented by the employer from performing his duties, the employee cannot be blamed for having not worked, and the principle of “no pay no work” shall not be applicable to such employee.” 23. The common contention of the appellants before us is that classification of AYUSH doctors and doctors under CHS in different categories is reasonable and permissible in law. This however does not appeal to us and we are inclined to agree with the findings of the Tribunal and the Delhi High Court that the classification is discriminatory and unreasonable since doctors under both segments are performing the same function of treating and healing their patients. The only difference is that AYUSH doctors are using indigenous systems of medicine like Ayurveda, Unani, etc. and CHS doctors are using Allopathy for tending to their patients. In our understanding, the mode of treatment by itself under the prevalent scheme of things, does not qualify as an intelligible differentia. such unreasonable Therefore, classification and discrimination based on it would surely be inconsistent with Article 14 of the Constitution. The order of AYUSH Ministry dated 24.11.2017 extending the age of superannuation to 65 Years also endorses such a view. This extension is in tune with the notification of Ministry of Health and Family Welfare dated 31.05.2016.” 7. Now IA No.1033 of 2022 has been filed by the State of Jharkhand for withdrawal of this Letters Patent Appeal. 8. This Interlocutory Application for withdrawal has been filed in view of resolution of the Health, Medical Education and Family Welfare Department, Government of Jharkhand contained in memo no. 25(20) dated 29th January 2022. In this Interlocutory Application, the appellant has stated as 9. under: “5. That it is humbly stated and submitted that in compliance of the orders passed by this Hon'ble Court, a resolution has been issued to the effect that the stipulations contained in para-6 of the resolution no.5(20) dated 08.01.2021 of the Health, Medical Education and Family Welfare Department, Government of Jharkhand providing that the decision taken in the pending L.P.A. No.496/2019 would affect the issues in the said resolution no.05(20) dated 08.01.2021 stands omitted. Such stipulation is contained in memo no. 25(20) dated 29.01.2022. 6. That is is humbly stated and submitted that in terms of the aforesaid the present L.P.A. has become infructuous and may be permitted to be withdrawn.” 10. In view of the aforesaid statements made in IA No.1033 of 2022, this Interlocutory Application is allowed and, consequently, LPA No. 496 of 2019 stands dismissed as withdrawn. 11. IA No. 5125 of 2021 which has been filed on behalf of the appellant to exempt it from depositing the cost amount of Rs.25,000/- is dismissed. 6 LPA No. 496 of 2019 12. The Principal Secretary, Health and Family Welfare Department, Govt. of Jharkhand, Ranchi shall ensure that the order passed on 23rd August 2021 is complied with within a period of four weeks by depositing the cost of Rs.25,000/- with the High Court Legal Services Committee. 13. Pending Interlocutory Applications i.e. IA No. 259 of 2022, IA
Decision
No. 5886 of 2021 and IA No.7194 of 2019 stand disposed of. (Shree Chandrashekhar, J.) (Ratnaker Bhengra, J.) Sharda/SB