Sanganer, Jaipur, District Jaipur (Raj.) vs State of Rajasthan, Through Principal Secretary,

Judgment

1. State of Rajasthan, Through Principal Secretary, Department of Ayurveda (Ayush), Government Secretariat, Jaipur (Raj.)

2. Deputy Secretary, Department of Ayurveda And Bhartiya Chikitsa (Ayush), Government Secretariat, Jaipur (Raj.)

3. The Director, Nideshalay Ayurved Vibhag, Rajasthan Ajmer Having Its Office At Ashok Marg Savitri Chauraha, Ajmer, Rajasthan-305001. ----Respondents For Petitioner(s)

: Ms. Neetu Bhansali For Respondent(s) : Mr. Vivaswan Dixit for Mr. Bhuvnesh Sharma, AAG JUSTICE ANOOP KUMAR DHAND Order 22/10/2024

1. By way of filing of this writ petition, a following prayer has been made:- “(i) The respondents may kindly be directed to allow the humble petitioner to continue till the age of 62 years and respondents may be directed to take them back in service with all consequential benefits, in the interest of justice. (ii) The impugned order dated 30.09.2024 passed by the respondents may kindly be quashed and set aside and the respondents may kindly be directed to not to retire the petitioner from service before attaining the age of 62 years. (iii) Any other appropriate order, which may be found just and proper in the facts and circumstances of the case, be passed in favour of the petitioner.” [2024:RJ-JP:44274] (2 of 5) [CW-16422/2024]

2. Learned counsel for the parties are in agreement that the controversy involved in this writ petition has already been decided by the Division Bench of this Court in the case of Dr. Mahesh Chandra Sharma & Ors. vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 13496/2021) decide on 13.07.2022 with the following observations and directions:- “It is not necessary for us to dwelve deep in the matter because this issue is no longer res integra and stands concluded by the decision of the Hon’ble Supreme Court in the case of North Delhi Municipal Corporation Vs. Dr. Ram Naresh Sharma & Ors (supra) and batch of cases where this issue was examined. While enhancing the age of retirement of Allopathic Doctors from 60 to 62 years, this enhancement had not taken place in respect of the class of Ayurvedic Doctors which resulted in filing of petitions before the Tribunal. The Tribunal held the classification unreasonable and the petitions were allowed. The matter was taken to the Hon’ble Supreme Court by the employer namely North Delhi Municipal Corporation. Their Lordships in the Hon’ble Supreme Court held as below:- “22. 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 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 Therefore, [2024:RJ-JP:44274] (3 of 5) [CW-16422/2024] is in tune with the notification of Ministry of Health and Family Welfare dated 31.05.2016.

23. The doctors, both under AYUSH and CHS, render service to patients and on this core aspect, there is nothing to distinguish them. Therefore, no rational justification is seen for having different dates for bestowing the benefit of extended age of superannuation to these two categories of doctors. Hence, the order of AYUSH Ministry (F. No. D.14019/4/2016EI (AYUSH)) dated 24.11.2017 must be retrospectively applied from 31.05.2016 to all concerned respondent doctors, in the present appeals. All consequences must follow from this conclusion.” The aforesaid authoritative pronouncement of Hon’ble Supreme Court leaves no scope for arguments on the part of the respondents to defend their action of discrimination in the matter of fixing age of superannuation of Ayurvedic Doctors and it has to be consequently held that they are also entitled to continue in service till completion of age of 62 years, which is applicable in the case of Allopathic Doctors. It is brought to our notice and also placed on record that the age of superannuation of Allopathic Doctors was enhanced from 60 to 62 years w.e.f. 31.03.2016. While some of the petitioners are still working, some of the petitioners have retired after attaining the age of 60 years after the issuance of notification enhancing age of retirement from 60 to 62 years in respect of Allopathic Doctors. All those petitioners, who have so retired after 31.03.2016, shall be deemed to have continued in service upto 62 years. This will require the respondents authority to pass necessary orders treating them in service till attaining the age of 62 years in individual cases with consequential benefits of continuity of service. All other consequential action would also be required to be taken which include refixation of pension and other benefits. Those, who have been superannuated on attaining the age of 60 years, but have not completed 62 years of age, be reinstated in service forthwith.”

3. That the aforesaid order passed by the Division Bench of this Court in the case of Dr. Mahesh Chandra (supra) was assailed by the State by way of filing Special Leave Petition (Civil) Nos. [2024:RJ-JP:44274] (4 of 5) [CW-16422/2024] 14308-14318/2022 and the said special leave to appeals have been rejected by the Hon’ble Apex Court vide order dated

30.01.2024.

4. Learned counsel for the parties are also in agreement that against the order dated 31.01.2024 passed by the Hon’ble Apex Court in a review petition with Diary No.11641/2024 was submitted by the State in the case of Dr. Mahesh Chandra Sharma (supra) before the Apex Court and the said review petition has also been rejected by the Hon’ble Apex Court vide order dated 15.10.2024.

5. Counsel submits that since the controversy involved in this petition has already been set at rest so the instant writ petition be disposed of in the light of judgment passed by the Division Bench of this Court in the case of Dr. Mahesh Chandra Sharma (supra).

6. Heard and considered the submissions made at Bar and perused the material available on the record.

7. Looking to the aforesaid statement jointly made by the respective parties and looking to the fact that the controversy involved in this writ petition has already been set at rest by the Division Bench of this Court in the case of Dr. Mahesh Chandra Sharma (supra) vide order dated 13.07.2022 and the said order passed by the Division Bench of this Court has been further approved by the Apex Court twice vide orders dated 30.01.2024 and 15.10.2024 and the order passed by the Division Bench of this Court in the case of Dr. Mahesh Chandra Sharma (supra) has attained finality. This Court deems it just and proper to [2024:RJ-JP:44274] (5 of 5) [CW-16422/2024] dispose of the instant writ petition in the light of similar directions issued by the Division Bench of this Court in the case of Dr. Mahesh Chandra Sharma (supra).

8. Stay application as well as all pending application(s), if any, also stand disposed of. GARIMA /7 (ANOOP KUMAR DHAND),J

: Ms. Neetu Bhansali For Respondent(s) : Mr. Vivaswan Dixit for Mr. Bhuvnesh Sharma, AAG JUSTICE ANOOP KUMAR DHAND Order 22/10/2024

1. By way of filing of this writ petition, a following prayer has been made:- “(i) The respondents may kindly be directed to allow the humble petitioner to continue till the age of 62 years and respondents may be directed to take them back in service with all consequential benefits, in the interest of justice. (ii) The impugned order dated 30.09.2024 passed by the respondents may kindly be quashed and set aside and the respondents may kindly be directed to not to retire the petitioner from service before attaining the age of 62 years. (iii) Any other appropriate order, which may be found just and proper in the facts and circumstances of the case, be passed in favour of the petitioner.” [2024:RJ-JP:44274] (2 of 5) [CW-16422/2024]

2. Learned counsel for the parties are in agreement that the controversy involved in this writ petition has already been decided by the Division Bench of this Court in the case of Dr. Mahesh Chandra Sharma & Ors. vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 13496/2021) decide on 13.07.2022 with the following observations and directions:- “It is not necessary for us to dwelve deep in the matter because this issue is no longer res integra and stands concluded by the decision of the Hon’ble Supreme Court in the case of North Delhi Municipal Corporation Vs. Dr. Ram Naresh Sharma & Ors (supra) and batch of cases where this issue was examined. While enhancing the age of retirement of Allopathic Doctors from 60 to 62 years, this enhancement had not taken place in respect of the class of Ayurvedic Doctors which resulted in filing of petitions before the Tribunal. The Tribunal held the classification unreasonable and the petitions were allowed. The matter was taken to the Hon’ble Supreme Court by the employer namely North Delhi Municipal Corporation. Their Lordships in the Hon’ble Supreme Court held as below:- “22. 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 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 Therefore, [2024:RJ-JP:44274] (3 of 5) [CW-16422/2024] is in tune with the notification of Ministry of Health and Family Welfare dated 31.05.2016.

23. The doctors, both under AYUSH and CHS, render service to patients and on this core aspect, there is nothing to distinguish them. Therefore, no rational justification is seen for having different dates for bestowing the benefit of extended age of superannuation to these two categories of doctors. Hence, the order of AYUSH Ministry (F. No. D.14019/4/2016EI (AYUSH)) dated 24.11.2017 must be retrospectively applied from 31.05.2016 to all concerned respondent doctors, in the present appeals. All consequences must follow from this conclusion.” The aforesaid authoritative pronouncement of Hon’ble Supreme Court leaves no scope for arguments on the part of the respondents to defend their action of discrimination in the matter of fixing age of superannuation of Ayurvedic Doctors and it has to be consequently held that they are also entitled to continue in service till completion of age of 62 years, which is applicable in the case of Allopathic Doctors. It is brought to our notice and also placed on record that the age of superannuation of Allopathic Doctors was enhanced from 60 to 62 years w.e.f. 31.03.2016. While some of the petitioners are still working, some of the petitioners have retired after attaining the age of 60 years after the issuance of notification enhancing age of retirement from 60 to 62 years in respect of Allopathic Doctors. All those petitioners, who have so retired after 31.03.2016, shall be deemed to have continued in service upto 62 years. This will require the respondents authority to pass necessary orders treating them in service till attaining the age of 62 years in individual cases with consequential benefits of continuity of service. All other consequential action would also be required to be taken which include refixation of pension and other benefits. Those, who have been superannuated on attaining the age of 60 years, but have not completed 62 years of age, be reinstated in service forthwith.”

3. That the aforesaid order passed by the Division Bench of this Court in the case of Dr. Mahesh Chandra (supra) was assailed by the State by way of filing Special Leave Petition (Civil) Nos. [2024:RJ-JP:44274] (4 of 5) [CW-16422/2024] 14308-14318/2022 and the said special leave to appeals have been rejected by the Hon’ble Apex Court vide order dated

30.01.2024.

4. Learned counsel for the parties are also in agreement that against the order dated 31.01.2024 passed by the Hon’ble Apex Court in a review petition with Diary No.11641/2024 was submitted by the State in the case of Dr. Mahesh Chandra Sharma (supra) before the Apex Court and the said review petition has also been rejected by the Hon’ble Apex Court vide order dated 15.10.2024.

5. Counsel submits that since the controversy involved in this petition has already been set at rest so the instant writ petition be disposed of in the light of judgment passed by the Division Bench of this Court in the case of Dr. Mahesh Chandra Sharma (supra).

6. Heard and considered the submissions made at Bar and perused the material available on the record.

7. Looking to the aforesaid statement jointly made by the respective parties and looking to the fact that the controversy involved in this writ petition has already been set at rest by the Division Bench of this Court in the case of Dr. Mahesh Chandra Sharma (supra) vide order dated 13.07.2022 and the said order passed by the Division Bench of this Court has been further approved by the Apex Court twice vide orders dated 30.01.2024 and 15.10.2024 and the order passed by the Division Bench of this Court in the case of Dr. Mahesh Chandra Sharma (supra) has attained finality. This Court deems it just and proper to [2024:RJ-JP:44274] (5 of 5) [CW-16422/2024] dispose of the instant writ petition in the light of similar directions issued by the Division Bench of this Court in the case of Dr. Mahesh Chandra Sharma (supra).

8. Stay application as well as all pending application(s), if any, also stand disposed of. GARIMA /7 (ANOOP KUMAR DHAND),J