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2023 DIGILAW 967 (MP)

S. K. Roy (Dr. ) v. Union of India

2023-12-05

AMAR NATH (KESHARWANI), SHEEL NAGU

body2023
ORDER 1. This petition under Article 227 of the Constitution invokes supervisory jurisdiction of this Court to assail the final order dated 21.07.2023 passed by Jabalpur Bench of Central Administrative Tribunal dismissing the O.A. in question by which challenge was made to the order dated 23.12.2022 whereby petitioner after attaining the age of superannuation on 16.12.2022 from the post of Senior Specialist Medical Officer Incharge, Ordinance Factory Hospital, Vehicle Factory, Jabalpur, has been released to join at Ordnance Factory Hospital, Medak as Senior Consultant (Health Care) with effect from 17.12.2022. Further challenge in the OA was made to consequential orders passed vide AnnexureA/2 and AnnexureA/3 both dated 23.12.2022. 2. Learned counsel for the rival parties are heard on the question of admission so also on final disposal. 3. The Tribunal has dismissed the OA in question on the ground that the challenge to the order of transfer is not made on malafide or competence of the transferring authority or the same being violative of any constitutional and statutory provision and also that the same does not adversely affect any of the service condition of the petitioner. 4. The facts reveal that Government of India by notification dated 11.8.2018 published in Government of India Gazette (Extra Ordinary) dated 11.8.2018 framed Fundamental (Second Amendment) Rules, 2018 which are to the following effect: “MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS (Department of Personnel and Training) NOTIFICATION New Delhi, the 11th August, 2018 G.S.R. 767(E).- In exercise of the powers conferred by the proviso to article 309 of the Constitution, the President hereby maker the following rules further to amend the Fundamental Rules, 1922, namely:- 1. Short title and commencement.- (1) These rules may be called the  Fundamental (Second Amendment) Rules, 2018. (2) They shall come into force on the date of their publication in the Official Gazette. 2. Short title and commencement.- (1) These rules may be called the  Fundamental (Second Amendment) Rules, 2018. (2) They shall come into force on the date of their publication in the Official Gazette. 2. In the Fundamental Rules, 1922, in rule 56, for clause (bb), the following shall be substituted, namely:- “(bb) (i) The age of superannuation in respect of the doctors belonging to- (i) Central Health Service; (ii) Indian Railways Medical Service; (iii) AYUSH and working under the Ministry of AYUSH; (iv) Civilian doctors under the Directorate General of Armed Forces Medical Service; (v) Medical Officers of the Indian Ordnance Factories Health Service; (vi) Dental Doctors under the Department of Health and Family Welfare; (vii) Dental doctors under the Ministry of Railways; and (viii) General Duty Medical Officers, Specialist Grade doctors and Teaching Medical Faculty working in Bhopal Memorial Hospital and Research Centre, shall be sixty-two years unless they exercise the option of posting to Teaching, Clinical, Patient Care, Implementation of Health programme, Public Health programme and functions including advisory and consultancy depending on their exprtise and experience, as decided by the competent authority in the concerned Ministry or Department from time to time, in case they desire to continue in their service upto the age of sixtyfive years: Provided that the age of superannuation in respect of the doctors belonging to the General Duty Medical Officers sub-caste of Central Armed Police Forces and Assam Rifles and Specialist Medical officers of Central Armed Police Forces and Assam Rifles shall be sixty-five years. (ii) The serving doctors belonging to the services referred to in subclause (I) who have either already attained the age of sixty-two years or attaining the age of sixty-two years within six months from the date of publication of these amendment rules in the official Gazette, may exercise their option in regard to their posting to Teaching, Clinical, Patient Care, Implementation of Health programmes, Public Health programmes and functions including advisory and consultancy as specified in sub-clause (I), within a period of thirty days from the date of the commencement of the Fundamental (Second Amendment) Rules, 2018. (iii) The serving doctors who fail to exercise the option in regard to their posting to Teaching, Clinical , Patient Care, Implementation of Health programmes, Public Health programmes and functions including advisory and consultancy as specified in sub-clause (I), within the period specified in sub clause (ii), shall be superannuated from their service on attaining the age of sixty-two years or on expiry of a period of theirty days from the date of the commencement of the Fundamental (Second Amendment) Rules, 2018, whichever is later”. [F.No.25012/4/2016-Estt.(A-IV)] GYANENDRA DEV TRIPTHI, Jt. Secy. Note: The Fundamental Rules were published in the Gazette of India on the 1st day of January, 1922 and were last amended vide notification number G.S.R.27(E), dated the 5th January, 2018.” By the aforesaid amendment in Fundamental Rule 56, Clause (bb) was substituted by the aforesaid where an option was given inter alia to Medical Officers of the Indian Ordnance Factories Health Service to continue on posts relating to Teaching, Clinical, Patient Care, Implementation of Health programmes, Public Health programmes and functions including advisory and consultancy upto the age of 65 years. 4.1 The aforesaid options were required to be made within a period of 30 days from 11.8.2018. 4.2 However, it is not disputed at the Bar that the period of submission of option was made available to even those Medical Officers in Ordnance Factories who were retiring within six months. 4.3 Petitioner accordingly submitted his option vide Annexure P/8 on 25.1.2022 well within the prescribed time limit since petitioner was attaining the age of superannuation of 62 years on 31.12.2022. 4.4 Pertinently, in the option form Annexure P/8, petitioner disclosed his date of superannuation for 62 years as 15.12.2022 since his date of birth was 15th of December. 4.5 Consequent upon the aforesaid option, petitioner was redesignated as Senior Consultant Health Care with effect from 17.12.2022 and directed to be posted at Ordnance Factory, Medak vide transfer order dated 23.5.2022. 5. The age of superannuation of a government servant is prescribed by statutory provision of Fundamental Rule 56, the relevant extract of which is reproduced below: “F.R. 56. 4.5 Consequent upon the aforesaid option, petitioner was redesignated as Senior Consultant Health Care with effect from 17.12.2022 and directed to be posted at Ordnance Factory, Medak vide transfer order dated 23.5.2022. 5. The age of superannuation of a government servant is prescribed by statutory provision of Fundamental Rule 56, the relevant extract of which is reproduced below: “F.R. 56. [(a) Except as otherwise provided in this rule, every Government servant shall retire from service on the afternoon of the last day of the month in which he attains the age of sixty years: Provided that a Government servant whose date of birth is the first of a month shall retire from service on the afternoon of the last day of the preceding month on attaining the age of sixty years.] [(bb) The age of superannuation in respect of specialists included in the Teaching. Non-Teaching and Public Health sub-cadres of Central Health Service shall be 62 years.]” 5.1 From the aforesaid, it is vivid that every government servant is entitled as of right to continue in government service till the last day of the month in which he attains the age of 60 years (62 years for Doctor/petitioner). 6. The official respondents by retiring petitioner on 15th-16th December, 2022 have truncated the services of petitioner without any lawful authority and in violation of the vested right available to petitioner to retire on 31.12.2022. 6.1 The aforesaid act of the official respondents of retiring petitioner from government servant on 15th-16th December, 2022 amounts to compulsory retirement which can either be done by way of penalty after conducting an inquiry or in public interest after finding petitioner to be a deadwood. 6.2 In the present case, the official respondents have neither conducted any disciplinary proceeding nor the case pertains to compulsory retirement in public interest. 7. Accordingly, it is clear as day light that by preponing petitioner’s date of superannuation from 31.12.2022 to 15th-16th December, 2022, the official respondents have acted unlawfully. 7.1 The aforesaid relevant aspect in all probability missed the attention of the Tribunal. 8. Consequently, this Court is of the considered view that there are good grounds for interfering in the instant matter. 9. Accordingly, present petition stands allowed in following terms :- (i) The impugned order of the Tribunal dated 21.7.2023 passed in O.A. No.1218/2022 stands set aside. 7.1 The aforesaid relevant aspect in all probability missed the attention of the Tribunal. 8. Consequently, this Court is of the considered view that there are good grounds for interfering in the instant matter. 9. Accordingly, present petition stands allowed in following terms :- (i) The impugned order of the Tribunal dated 21.7.2023 passed in O.A. No.1218/2022 stands set aside. (ii) Petitioner be deemed to have superannuated with effect from 31.12.2022 with consequential service benefits as admissible in law. (iii) The impugned order of transfer dated 23.5.2022 (Annexure A/1) and the consequential letters No.256/SKR/CAT/H&S-2022 and No.254/04/14/H&S/MED both dated 23.12.2022 stand quashed. (iv) Since petitioner has already opted for extension of service under the notification dated 11.8.2018, the official respondents are free to pass fresh order of posting to the petitioner.