Research › Search › Judgment

Patna High Court · body

2013 DIGILAW 277 (PAT)

Sharfe Alam v. State of Bihar

2013-02-28

SAMARENDRA PRATAP SINGH

body2013
ORDER : SAMARENDRA PRATAP SINGH, J. 1. Heard counsel for the petitioner and the State. The petitioner was appointed as Homeopathic Medical Officer under Employees State Insurance Scheme in the Department of Labour & Employment on 4.10.1982 initially on temporary basis but subsequently confirmed. 2. The petitioner submits that an amendment was made in Rule 73 of the Bihar Service Code in February, 2009 whereby the retirement age of the members of Bihar Health Services as well as Bihar Medical Education Service was enhanced to 62 years. The amendment also enhanced the age of Indigenous Doctor including those in Indigenous Medical Education. The State Government again vide memo No. 9544 dated 1.9.2010 made amendment in Rule 73 of the Bihar Service Code wherein the retirement age of employees of Insurance Medical Service Cadre was enhanced to 62 years from 60 years. 3. The petitioner filed the instant writ application seeking a direction to the respondent authorities to enhance the age of superannuation to 62 years in terms of amended provisions of Rule 73 of the Bihar Service Code. 4. A supplementary affidavit has been filed on behalf of the petitioner stating that retirement age of Uninani and Ayurvedic Medical Officer also appointed under the Employees State Insurance Scheme under Labour Department has been enhanced to 62 years from 60 years. The petitioner submits that this court by order dated 21.1.2010 passed in C.W.J.C. No. 18372 of 2009 (Dr. Narbdeshwar Tripathy & Ors. v. State of Bihar) held that Homeopathic Doctor posted in Zila Parishad are also entitled to enhanced retirement age of 62 years in view of amendment vide notification bearing memo No. 1262 dated 25.2.2009. 5. A counter affidavit has been filed on behalf of the State stating therein that by 2009 and 2011 amendment the superannuation age of the members of Bihar Medical Service and Bihar Medical Teaching Service has been enhanced from 60 to 62 years and then from 62 to 65 years. In paragraph 9 of the counter affidavit it has been stated that by enactment of the Bihar Service (Amendment) Code, 2010 another provision was added in the said Rule 73 of the Bihar Service Code whereby the date of superannuation of the Doctors in the cadre of Insurance Medical Services has been extended from 60 years to 62 years. In paragraph 9 of the counter affidavit it has been stated that by enactment of the Bihar Service (Amendment) Code, 2010 another provision was added in the said Rule 73 of the Bihar Service Code whereby the date of superannuation of the Doctors in the cadre of Insurance Medical Services has been extended from 60 years to 62 years. The stand of the State is that the Doctors who are employed under the State Insurance Scheme of Labour Department would not come under the Medical Health Service which is distinct and a different cadre. 6. I have heard learned counsel for the parties. 7. The petitioner is a Homeopathic Medical Doctor under Employees State Insurance Scheme in the Department of Labour & Employment. The amendment dated 1.9.2010 in Rule 73 of Bihar Service Code seeks to extend the retirement age of employees of Insurance Medical Service Cadre as contained in Annexure-7. 8. The stand of the State is that the Medical Officer appointed under Labour scheme under Labour Department would not come within cadre of Insurance Employees Medical Service. It is relevant to state that this Court in case of Dr. Narbdeshwar Tripathy & Ors. v. State of Bihar (supra) extended the retirement age of Ayurvedic Doctors working under Panchayati Raj Department, though amendment specifically did not enhance the age of Indigenous Doctor working in the Panchayat Raj Act. 9. This court found no reason for not extending the enhanced retirement age to the Indigenous Doctor serving in Board and Parishad when it is enhancing the same in respect of Indigenous Doctor employed in the cadre of Insurance Medical Services under the Health Department. 10. It appears that the petitioner in paragraph 3 of the supplementary affidavit has stated as follows: "3. That it is further submitted that despite the fact that petitioner belongs to the same cadre as Uninani and Ayurvedic Medical Officer and the Bihar Service Code is applicable to the cadre of Medical Officer of Employees State Insurance Scheme and as such denying the benefit of age of superannuation of 62 years is in violation of Article 14 of the Constitution of India, which has been accorded in favour of Uninani and Ayurvedic Medical Officer of the same cadre." 11. In case what is stated in paragraph 3 of the supplementary affidavit bears out true picture, then there would no reason as to why the same benefit of enhancement of retirement age allowed to the Uninani and Ayurvedic Medical Officer too serving under the Employees State Insurance Scheme of Labour Department be not extended to Homeopathic Doctor. None grant of similar benefit to another wing of Indigenous medicine namely Homeopathic Doctors would be violative of Articles 14 and 16 of the Constitution of India. 12. In view of the statement made in paragraph 3 of the supplementary affidavit, I direct the respondent State to accord similar benefit by enhancing the retirement age of Homeopathic Medical Officer appointed under the Labour State Insurance Scheme to 62 years. The petitioner who superannuated on reaching age of 60 years during the pendency of this writ application on 31.7.2012 would be entitled to this benefits if so allowed to other wing of Indigenous Doctors e.g. Uninani and Ayurvedic. In the result, this writ application is allowed to the extent mentioned above.