JUDGMENT : AMRESHWAR PRATAP SAHI, J. 1. Heard Shri S.D. Sanjay, learned Senior Counsel for the appellant and Shri Rohitabh Das, Assistant Counsel to Additional Advocate General No. 10 for the State of Bihar. 2. The appeal which has given rise to this controversy has arisen out of the order passed by the Department of Labour, Government of Bihar dated 24th August, 2016, whereby the State Government has refused to accept the contention of the appellant for extending him the benefit of enhancement of the age of superannuation from 60 to 65 years on the ground that the appellant has already been absorbed in a different cadre of the Labour Department, whereas his initial Parent Department was of the Health Services and consequently no such benefit can be extended. 3. There is no dispute about the fact of the appellant having been initially appointed in the Health Services of the Government of Bihar and later on being transferred to the Labour Department where he occupied different posts and ultimately upon being appointed as the Inspector of Factories (Medical) he came to be absorbed against the said post. The impugned order further records that on account of his absorption, he looses his lien in the parent Health Services Department. The appellant, therefore, cannot claim any such benefits extended to the officers of the Health Department, particularly the age of superannuation which has now been increased to 67 years. The impugned order further records that the matter was consulted with the Finance Department but the Finance Department observed that the matter should be deliberated with the General Administration Department, where after the same view has been reiterated that since the appellant has been permanently absorbed in the Labour Department, therefore, he cannot be either repatriated or considered to be a member of the previous cadre of the Health Department. The order further recites that the age enhancement applies only to those Medical Officers who are of the Health Services Cadre and if the Appellant who even though possesses the qualification of a Medical Officer, since he is now in a nonmedical cadre, he cannot claim benefits even if he possesses the same qualification. Consequently, the Labour Department has denied the benefit of extension of age as claimed by the appellant. 4. Consequently, the Labour Department has denied the benefit of extension of age as claimed by the appellant. 4. It may be mentioned that the appellant had approached this Court by filing C.W.J.C. No. 5867 of 2016 that had been disposed of on 28th July, 2016 with a direction to consider the claim of the appellant which has been rejected under the impugned order dated 24th August, 2016. 5. Questioning the correctness of the same, the writ petition giving rise to the present controversy namely C.W.J.C. No. 15879 of 2016 was filed wherein after exchange of affidavits it was the contention on behalf of the appellant-petitioner that, he in spite of having been absorbed permanently, was entitled for age extension inasmuch as within the Labour Department itself the doctors who were serving in the Employees State Insurance Clinics have been extended the said benefit and, therefore, even assuming for the sake of argument, though not admitting that such benefits were not comparable with the Health Services, the very extension of benefits to the Employees State Insurance doctors within the same department and denying the same to the appellant and one more doctor, the same was an abject act of hostile discrimination, thereby violating Article 14 of the Constitution of India. 6. It has been urged on behalf of the appellant-petitioner that this is not a case of the power not being possessed by the Government to extend the said benefit but it is a case where the exercise of such power has been deliberately withheld for no rational basis, inasmuch as, the extension of the age of superannuation of the post held by the appellant would in no way either be contrary to the object for which the age of the other doctors have been enhanced nor would it result in any adverse circumstances or discrimination. On the contrary, it is also evident from the record that the State Government itself has chosen to enhance the age in all other departments including Health Services and consequently in the absence of any such justification the denial of enhancement of the age of superannuation of the post held by the appellant is neither supported by any logic nor is it sustainable on any legal principles. On the practical side it is urged that there are only two such posts in the entire cadre of Inspector of Factories (Medical) that have been chosen for being eliminated for any such benefit and the outcome thereof is that no person from within the Medical Cadre is opting for any such future employment against such posts which are lying vacant after the appellant's services were not extended i.e. after 31st July, 2016. The reason according to the appellant is obvious that if the age is not enhanced then no person from the medical stream would like to deprive himself of the benefit of the extended age which is otherwise available in their cadre on the existing post held by them. 7. To buttress the submissions with the aid of the relevant rules, it has been pointed out by the learned counsel that the post of a Factory Inspector (Medical) is governed by the provisions of the Factories Act, 1948 read with Bihar Factories Rules, 1950. For this, the invitation of the Court has been drawn to Rule 13A of the 1950 Rules and the Special provisions contained in Rule 95 as well as Rule 62NH to contend that the said rules clearly indicate the qualifications of an Inspector (Factories) from the medical stream. The qualification of possession of a degree from the field of medicine together with the nature of the duties of medical examination that has to be performed can be clearly culled out from the aforesaid rules. It has been further pointed out that the Department of Labour and Employment under the notification dated 26th June, 1969 has framed the Bihar Labour Services (Technical) Rules, 1969 which defines the post of Inspector of Factories as a Class-II post. 8. It has been further pointed out that the Department of Labour and Employment under the notification dated 26th June, 1969 has framed the Bihar Labour Services (Technical) Rules, 1969 which defines the post of Inspector of Factories as a Class-II post. 8. We may clarify that the said rules do not specifically mention the bifurcation or separate existence of the post Inspector of Factories (Medical), but at the same time, it is evident from the notifications on record that such posts are included within the said cadre, inasmuch as, the very appointment and absorption of the appellant was made as an Inspector of Factories (Medical) and not only this upon the bifurcation of the State of Bihar into two States and the creation of the State of Jharkhand, the notifications on record also indicate existence of two posts of Inspector of Factories (Medical) specified in the notifications as Class-II officers within the Labour Department itself. There is, therefore, no dispute that the appellant came to be appointed against one of such posts by way of absorption as would be evident from the facts narrated hereinafter. 9. In order to trace the chronology of the services of the appellant, we may place on record that the initial appointment of the appellant was in the Health Services Department of the Government of Bihar. He was transferred to the Labour Department under a notification of the Health Department on 30th June, 1988. A copy of the said notification is on record and the name of the appellant finds mention at Serial No. 50. Upon being transferred, the appellant took over as a Medical Officer in the ESI Hospital at Digha, Patna. The said notification is also on record. He was then posted at other hospitals under the Employees State Insurance Medical Centres and vide order dated 18th April, 1995 the Director, Employees State Insurance, Bihar was informed that there are two posts of Inspector of Factories (Medical) that have to be filled up on deputation from the Health Services Cadre of Class-II officers who may have special knowledge of Industrial Health. The said two posts would have their headquarters at Patna with the entire State of Bihar as their territorial jurisdiction. On this notification having been issued, it appears the appellant and one Dr. Rajkeshwar Kumar along with others were offered appointment by way of deputation. The said two posts would have their headquarters at Patna with the entire State of Bihar as their territorial jurisdiction. On this notification having been issued, it appears the appellant and one Dr. Rajkeshwar Kumar along with others were offered appointment by way of deputation. The name of the appellant specifically is mentioned in the notification dated 30th June, 1996, a copy whereof is on record. He was accordingly appointed on deputation as Factory Inspector (Medical) and designated as such under the aforesaid notification. It appears that a process for permanent absorption was mooted and a proposal was accepted for absorbing the appellant and Dr. Rajkeshwar Kumar in the Labour Department on the post of Inspector of Factories (Medical). The said proposal dated 25th February, 2004 was circulated and the appellant also gave his consent that he may be absorbed and simultaneously he also offered to surrender his lien in the Health Department. On 2nd September, 2004 the Government accepted the said proposal and the notification was issued on 9th of September, 2004 designating the appellant and Dr. Rajkeshwar Kumar as Factory Inspector (Medical) in the Labour Services, the technical cadre of the Department of Labour. It appears that on an information sought in the year 2010 under the Right to Information Act, the status of the post held by the appellant and Rajkeshwar Kumar was acknowledged by the Government of Bihar which is extracted here in under:- ^^la[;k&1@Je foŒLFkkŒ ¼5½ 50&04@2008 JŒ la[;k 1992 fcgkj ljdkj] Je lalk/ku foHkkx Ás"kd] jek'kadj Álkn nQ~rqvkj] ljdkj ds mi lfpoA lsok esa] mi lfpo≶&yksd lwpuk inkf/kdkjh] Je lalk/ku foHkkx] fcgkj] iVukA iVuk] fnukad 23-6-2010 fo"k; %& Jh /kuat; dqekj vf/koDrk] i=dkj uxj iVuk }kjk lwpuk dk vf/kdkj ds vUrxZr ekax dh xbZ lwpuk,a miyC/k djkus ds laca/k esaA egk'k;] mi;qZDr fo"k;d foHkkxh; i=kad&54@10 JŒlaŒ 1869 fnukad 10-6-2010 ds lUnHkZ esa Jh /kuat; dqekj] vf/koDrk i=dkj uxj] iVuk }kjk lwpuk dk vf/kdkj ds vUrxZr ekax dh xbZ fcUnqckj lwpuk,a fuEu Ádkj gS %& ¼1½ la;qDr fcgkj esa dkj[kkuk fujh{kd ¼HkS"kT;½ ds dqy nks in Lohd`r FksA MkŒ 'ke'ksj cgknqj flag MkŒ jktds'oj dqekj mDr in ij inLFkkfir FksA ¼2½ fcgkj iquxZBu vf/kfu;e 2000 ds rgr jkT; foHkktu ds mijkUr fcgkj jkT; dks dkj[kkuk fujh{kd ¼HkS"kT;½ ds dqy nks in vkoafVr fd;s x;sA MkŒ 'ke'ksj cgknqj rFkk MkŒ jktds'oj dqekj mDr in ij inLFkkfir gSA fo'oklHkktu jek'kadj Álkn nQ~rqvkj ljdkj ds mi lfpoA** 10. Thus, on a conspectus of the aforesaid facts and the documents referred to hereinabove, there is no doubt that the post occupied by the appellant is that of a Factory Inspector (Medical) which is one of the post of Class-II of the Labour Services Technical Cadre and which post can be occupied by a Medical Officer possessing the qualification in medicine. It may be mentioned herein that the said cadre of the Bihar Labour Services (Technical) includes other posts as well which is evident from 1969 Rules referred to hereinabove that includes a Factory Inspector (Chemical) and such other posts that may be defined by the State Government. 11. It may be mentioned that the Medical Inspector of Factories, Bihar has been conferred with the authority of a Certifying Surgeon defined under the Factories Act. The said notification dated 25th of November, 1985 is extracted here in under:- "S.O. 1288, dated the 25th November, 1985- In exercise of the powers conferred by section 10 of the Factories Act, 1948 (LXIII of 1948) and in partial modification of notification no. S.O. 862 dated the 25th May, 1982, the Governor of Bihar is pleased to appoint the person as specified in column 1 of the schedule hereto annexed to be Certifying Surgeon for the purposes of the said Act within the limits of his respective jurisdiction as specified in column 2 of the said schedule and declare that the Certifying Surgeon shall be subordinate to the Chief Inspector of Factories, Bihar for the purposes of his duties and functions under the said Act: Provided that the Certifying Surgeon may authorise one or more of the Civil Assistant Surgeon of his hospital or dispensary to exercise the powers of a Certifying Surgeon for such periods within such limits and with such condition as he may specify by an order in writing: Provided further that copies of all such orders in writing shall be sent to the Chief Inspector of Factories and will be subject to his control. SCHEDULE Column 1 Column 2 Medical Inspector of Factories, Bihar, Patna Throughout the State of Bihar 12. This is to be taken notice of inasmuch as apart from the Inspectors referred to in Section 9 of the Factories Act, 1948, the post of Certifying Surgeons are defined in Section 10. SCHEDULE Column 1 Column 2 Medical Inspector of Factories, Bihar, Patna Throughout the State of Bihar 12. This is to be taken notice of inasmuch as apart from the Inspectors referred to in Section 9 of the Factories Act, 1948, the post of Certifying Surgeons are defined in Section 10. A perusal of Section 10 would indicate that the Certifying Surgeon has to carry out duties which includes the examination and certification of young persons under the 1948 Act, the examination of persons engaged in factories in such dangerous occupations or processes as may be prescribed and the exercise of such medical supervision as may be prescribed for any factory or class or description for cases of illness, conditions of work, the reason of any change in the manufacturing process and its impact on the health of workers and such other conditions which are likely to cause injury to the health of workmen. The explanation added to Section 10 clearly defines a qualified medical practitioner who is to occupy such a post. It is, therefore, evident that the Inspector of Factories who is enjoined with the duties of a Certifying Surgeon has necessarily to perform all functions of medical examinations as referred to in the 1948 Act. 13. The respondents have been contesting this stand of the appellant on the ground that after having adopted the cadre of the Labour Department the duty, responsibility and other functions of the appellant are entirely different and as a matter of fact his function as a Medical Practitioner stands minimized to an extent that the appellant cannot compare himself with any Medical Practitioner of either the Bihar Medical Health Services or of the Labour Department itself. The argument, therefore, clearly appears to be that with the change of cadre the nature of duties and responsibility also stands altered to a great extent and with the diverse nature of functions to be performed as an Inspector the duties and responsibility almost come to a bare minimum when it comes to actual medical practice. Consequently, the appellant according to the respondents is not entitled to claim any benefit at par with that of the Medical Officers of any other department of the Government, more particularly for claiming the benefit of enhancement of the age of superannuation. Consequently, the appellant according to the respondents is not entitled to claim any benefit at par with that of the Medical Officers of any other department of the Government, more particularly for claiming the benefit of enhancement of the age of superannuation. It has, therefore, been the stand of the respondents throughout that in the absence of any such material so as to justify the comparison alleged by the appellant the claim of enhancement of age is inadmissible. 14. On the other hand, learned counsel for the appellant has urged that in view similar benefits having been extended to other Medical Officers, the same benefit cannot be denied to the appellant for which reliance is placed on the judgment of a learned Single Judge as affirmed in an L.P.A. in the case of Dr. Sharfe Alam Vs. The State of Bihar & Ors reported in, (2017) 2 PLJR 971 , the appeal whereof was decided by a Division Bench which is reported in 2017 (4) PLJR 285 , another judgment of the Apex Court in the case of Union of India and others Vs. K. T. Shastri reported in, (1990) 1 SCC 509 . To substantiate the aforesaid submission, learned counsel has also relied on a judgment in the case of State of Uttar Pradesh Vs. Dayanand Chakrawarty and others reported in, (2013) 7 SCC 595 , Paragraphs 28.1 Learned counsel submits that the benefit can be extended as was done in another case arising out of the Labour Department, decided by a Division Bench of this Court in the case of Lala Nand Kumar & Ors. Vs. The Bihar State Food & Civil Supplies Corporation Ltd. & Ors. reported in, (2008) 1 PLJR 579 . 15. Learned counsel for the respondents has relied on the Apex Court decision in the case of Sukumar Mukherjee Vs. State of W.B. and another reported in, (1993) 3 SCC 723 to urge that since there is not only a distinction of cadre but also a clear distinction with regard to nature and duties to be performed in the respective cadres, the appellant cannot claim any such parity and the judgments relied on would not be applicable on the facts of the present case. 16. 16. The learned Single Judge after having appreciated the rival contentions came to the conclusion that a plain comparison of duties attached to the post of Certifying Surgeon qua the duties attached to the post of Inspector of Factories would leave no room for doubt that the Inspector of Factories is only performing an ancillary duty of medical examination and his primary job is to foresee that the provisions of the 1948 Act are complied with, even though the health aspect is also a part of such duty. The learned Single Judge has further concluded that a plain reading of the powers and duties attached to the post of Inspector as per Section 9 of the Factories Act, 1948 read with Rule 13 of the Bihar Factories Rules, 1950 would establish that apart from looking after the health and safety of workers the dominant purpose for which an Inspector is appointed is for a lawful running of any factory and consequently the learned Single Judge came to the conclusion that the duties and responsibilities performed by the Inspector of Factories (Medical) would not bring him within the fold of a Medical Officer performing all such medical duties at par with the Medical Officers of the Bihar Health Services or such other Medical Officers whose age of superannuation has been extended up to the age of 67 years. 17. Having considered the submissions raised and perused the records as well as the judgment cited at the Bar, the nature and duties of an Inspector of Factories (Medical) leave no room for doubt that the appointment on the said post is through the medical stream and the duties and responsibilities as per Section 10 of the 1948 Act cannot by itself lead to an inference that such duties are ancillary and the dominant nature of duties is administrative. In order to decipher this, the order dated 24th August, 2016 has nowhere discussed this issue at all. The learned Single Judge has drawn his own inference on a comparison made on the basis of the pleadings on record. We are of the considered view that this exercise of comparing the duties and responsibilities ought to have been undertaken by the State Government itself before either accepting or denying the benefits claimed by the appellant. The learned Single Judge has drawn his own inference on a comparison made on the basis of the pleadings on record. We are of the considered view that this exercise of comparing the duties and responsibilities ought to have been undertaken by the State Government itself before either accepting or denying the benefits claimed by the appellant. The State Government in the impugned communication has simply relied on the change of cadre, little realising that within the Labour Department itself, such doctors who continue to man the Employee State Insurance Clinics have been given the benefits of extension of services. The appellant has travelled upwards from the post of an Assistant Civil Surgeon in the Bihar Medical Services to the post of Inspector of Factories (Medical) in the Labour Department. To deny such benefit of extending the age of superannuation should be based on a rational policy and not merely because there has been a change in cadre on account of the absorption of the appellant in the circumstances indicated above. The contest by the State in this entire litigation is in respect of the appellant and can only affect one more person who was absorbed along with the appellant. It is not understood as to why the State Government has not chosen to consider the extension in the age of superannuation on the said post of Inspector of Factories (Medical) keeping in view the nature of duties which are distinct from the other Inspector of Factories. It is correct that the post occupied by the appellant is within the technical cadre of the post as included under the 1969 Rules referred to hereinabove, but the fact remains that the appellant continues to occupy the post of a Medical Officer who also performs duties relating to practice of medicine, as is evident from Section 10 of the 1948 Act read with Rule 13 and 13A of the 1950 Rules. The learned Single Judge undertook this task to compare the duties and responsibilities in spite of a clear averment by the appellant in his affidavits that he continues to perform medical duties which are necessary part of his function. The S.O. No. 1288 dated 25th November, 1985 confers authority on the Inspector of Factories (Medical) to perform all duties and responsibilities of a Certifying Surgeon. The S.O. No. 1288 dated 25th November, 1985 confers authority on the Inspector of Factories (Medical) to perform all duties and responsibilities of a Certifying Surgeon. The same appears to have been overlooked by the State Government while passing the impugned order as well as by the learned Single Judge in the impugned judgment. The bifurcation into primary and ancillary duties and the dominant purpose of employment ought not to have been assessed bereft of the aforesaid considerations. In essence, in our opinion, the matter should have been left to the State Government to re-visit its decision after taking into account all the factors including the nature of the post, the manner in which the appellant came to be absorbed in the Labour Department and his duties and responsibilities attached to the post of Inspector of Factories (Medical). 18. We are, therefore, of the view that the impugned judgment cannot be sustained nor can the order of the State Government dated 24th August, 2016 for all the reasons stated here in above. The appeal, therefore, deserves to be allowed. We, accordingly, set aside the impugned judgment of the learned Single Judge dated 6th November, 2017 passed in C.W.J.C. No. 15879 of 2016 as well as the order of the State Government dated 24th August, 2016. The State Government shall reconsider the claim of the appellant in the light of the observations made hereinabove and pass an appropriate order within three months of the presentation of the certified copy of the order before the Principal Secretary, Department of Labour, Government of Bihar. 19. The appeal stands allowed accordingly.