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2020 DIGILAW 711 (JHR)

Anand Kumar Sinha v. State of Jharkhand

2020-07-06

SANJAY KUMAR DWIVEDI

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JUDGMENT : 1. Heard Mr. Saurabh Shekhar, learned counsel for the petitioner and Mr. Sreenu Garapati, learned counsel for respondents-State. 2. This writ petition has been heard through Video Conferencing in view of the guidelines of the High Court taking into account the situation arising due to COVID-19 pandemic. None of the parties have complained about any technical snag of audio-video and with their consent this matter has been heard. 3. The petitioner has preferred this writ petition for direction upon the respondents to forthwith enhance the age of superannuation of the petitioners from 60 years to 65 years on the ground that the recommendation of 6th Pay Revision Commission is already there whereby the committee has recommended that all the doctors should be treated at par for pay and allowance and service conditions purpose and also on the ground that the Allopathic Doctors in the State of Jharkhand have already been given the benefit of enhancement in the age of superannuation from 60 to 65 years vide circular dated 23.07.2011. 4. The case of the petitioners are that petitioner no.1- Dr. Anand Kumar Sinha was appointed on 12.02.1999 on the post of Ayurvedic Medical Officer and is due to retire on 30.10.2020. Petitioner no.2- Dr. Sharifur Rahaman was appointed on the post of Ayurvedic Medical Officer on 12.02.1999 and is due to retire on 30.11.2021. Petitioner no.3- Dr. Ashok Kumar was appointed on 15.12.1997 on the post of Ayurvedic Medical Officer and is due to retire on 31.03.2023. After the bifurcation of State by virtue of Bihar Re-organization Act, 2000, the cadre of the petitioners have been allocated finally to the State of Jharkhand. There is provision under Section 73 of Bihar Re-organization Act, 2000 that there cannot be alteration in the service condition of one or other employee which is detrimental to the interest of the said employee. After final allocation, the petitioners joined in the State of Jharkhand and in view of Section 73, there cannot be any alteration in their service condition. The 6th Central Pay Commission’s report has come into existence. It has been adopted by the State of Jharkhand on 15.09.2008 and the Ayurvedic doctors have been given at par treatment with the Allopathic doctors. The said recommendation has been brought on record by way of Annexure-2. The 6th Central Pay Commission’s report has come into existence. It has been adopted by the State of Jharkhand on 15.09.2008 and the Ayurvedic doctors have been given at par treatment with the Allopathic doctors. The said recommendation has been brought on record by way of Annexure-2. The State of Jharkhand has issued a circular on 23.07.2011 whereby Allopathic doctors have been given the benefit of enhancement in the age of superannuation from 60 to 65 years by making necessary modification in Rule 73 of the Jharkhand Service Code. In view of the recommendation of 6th Central Pay Commission, which has been adopted by the State of Jharkhand mutatis mutandis all the Ayurvedic doctors have been given at par treatment with the Allopathic doctors. In view of that circular, age of superannuation has been enhanced from 60 to 65 years with respect to Allopathic doctors though the circular is there and the said benefit has not been provided to the petitioners. The State of Bihar has already adopted recommendation of 6th Central Pay Commission by virtue of which the Ayurvedic doctors have already been given at par treatment with the Allopathic doctors. The same benefit has not been provided to the petitioners. Aggrieved with that, the petitioners have preferred this writ petition. 5. The case of the respondent-State is that Government of Jharkhand vide resolution no.283 dated 23.07.2011 enhanced the retirement age of Health Service Cadre (Allopathic) from 60 to 65 years after amending Rule 73 of the Jharkhand Service Code taking into account the various factors and the need for such increase in retirement age of Allopathic doctors. The retirement age of all other equivalent officers of different cadres has not been raised in the State of Jharkhand and it is stated that resolution issued by the State of Bihar is not at all applicable within the State of Jharkhand. The age of retirement of Ayurvedic doctors has not been considered by the State Government at present and the petitioners’ case is not fit to be considered, so question of enhancement in the age of retirement of the petitioners does not arise. The service conditions of Ayurvedic and Allopathic doctors are different and as per the Policy of the State, the retirement age of Allopathic doctors has been increased, so there is no enhancement by the State Government. The service conditions of Ayurvedic and Allopathic doctors are different and as per the Policy of the State, the retirement age of Allopathic doctors has been increased, so there is no enhancement by the State Government. In view of this fact, the writ petition got no merit and the same is liable to be dismissed. 6. Mr. Saurabh Shekhar, learned counsel appearing for petitioners assailed the action of respondents-State on the ground that the State of Jharkhand has adopted recommendation of 6th Central Pay Commission w.e.f. 15.09.2008 wherein it has been recommended that all the doctors i.e. Allopathic, Yoga, Siddha, Unani and Homeopathic at par, including the scheme of DACP to be extended to these doctors. He submits that in view of said recommendation, the petitioners are entitled and the action of respondents in not taking any positive action, is arbitrary. The Government of Jharkhand cannot be allowed to violate Section 73 of Bihar Re-organization Act, 2000 which provides that there cannot be alteration in the service condition of the employee. Though application has been made, but no decision has been taken. He further submits that identical matter has already been decided in W.P.(S) No.4071 of 2017 which was disposed of by order dated 08.08.2018 wherein direction has been issued to re-consider the case of the petitioners of that case. He further submits that pursuant to that order, the case of those petitioners have been considered and their case has been rejected which is apparent in view of counter affidavit filed on behalf of respondent no.5. He submits that against the judgment of learned Single Judge passed in W.P.(S) No.4071 of 2017, L.P.A. has been filed which is numbered as L.P.A. No.496 of 2019 which is still pending. He further submits that recommendation of 6th Pay Commission has not been taken into consideration by learned Single Judge. He submits that the case of the petitioners are on better footing. He further submits that L.P.A. is with regard to other case and there is no stay in that L.P.A. and hence no opportunity of hearing to the petitioners in that L.P.A. will be there. He submits that this writ petition may be disposed of. 7. Learned counsel for respondents-State submits that the case of the petitioners are not fit to be considered. He submits that this writ petition may be disposed of. 7. Learned counsel for respondents-State submits that the case of the petitioners are not fit to be considered. Government of Jharkhand has already taken decision in the light of earlier order of learned Single Judge which has been rejected. He further submits that L.P.A. No.496 of 2019 is pending and in that view of the matter, the writ petition may be kept pending. 8. The Court has considered the prayer made in the writ petition as well as argument advanced on behalf of the parties. The Court has perused the recommendation of 6th Pay Commission which treated all the doctors i.e. Allopathic, Indian Medicines like Ayurveda, Yoga, Sidha, Unani and Homeopathy, at par, including the scheme of DACP to the extended to these doctors. All such doctors are recommended to be upgraded at par with other doctors on 01.01.2006 and pay in revised scale be fixed accordingly. These recommendations of Fitment Committee is already on record as Annexure-2. This aspect of the matter has not been considered by the co-ordinate Bench of this Court while disposing of the aforesaid writ petition. There is no stay in the L.P.A. No.496 of 2019. Thus, no purpose will be served in keeping pending this writ petition before this Court. 9. Accordingly, Principal Secretary of the Health Department, Government of Jharkhand is directed to re-consider the case of the petitioners for enhancing their age of superannuation from 60 to 65 years. He will also take into consideration the Fitment Committee report (Annexure-2) whereby the petitioners are directed to get at par with all the doctors. In view of earlier decision in the matter, the Court directs the petitioners to file their individual recommendations placed on record and the relevant facts before the Principal Secretary of the Health Department with all the credentials and the documents on which they are relying within a period of two weeks. If such representation is filed by the petitioners within the aforesaid period, the Principal Secretary of Health Department will place the matter before the State Government for taking a decision in accordance with rules, regulations and guidelines particularly the fact of Fitment Committee report (Annexure-2) and Section 73 of Bihar Re-organization Act and counterpart of the State of Bihar wherein they have been provided such benefit within a period of three months thereafter. 10. 10. With the above observations and directions, this writ petition stands disposed of.