OP(KAT) Nos. 233/2023, 269/2023 and 369/2023 v. State of Kerala and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE`** ## **`&`** ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN ``` ``` WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 ``` ``` OP(KAT) NO. 233 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT OA 666/2023 OF KERALA ADMINISTRATIVE ``` ## **`TRIBUNAL, THIRUVANANTHAPURAM`** ## **`PETITIONER/S/APPLICANT:`** ``` DR.BINDU K.K., ``` ``` AGED 56 YEARS, D/O K.P.KRISHNANKUTTY, DISTRICT MEDICAL OFFICER (HOMOEO), RETIRED, RESIDING AT SREEKANTH HOUSE, MAYYANNUR P.O., VADAKARA, KOZHIKODE,KERALA, PIN - 673542 ``` ``` BY ADV SAJEEV KUMAR K.GOPAL ``` ## **`RESPONDENT/S/RESPONDENTS IN O.A.:`** - **`1 THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE SECRETARY, AYUSH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`3 THE DIRECTOR OF HOMEOPATHY, DIRECTORATE OF HOMOEOPATHY, EAST FORT, THIRUVANANTHAPURAM, PIN - 695023 BY ADVS. GOVERNMENT PLEADER ADVOCATE GENERAL OFFICE KERALA SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL SABEENA P. ISMAIL, GOVERNMENT PLEADER`** ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 25.10.2023, ALONG WITH OP(KAT).269/2023, 369/2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(KAT) NOs. 233, 269 and 369 OF 2023 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 ``` ``` OP(KAT) NO. 269 OF 2023 ``` ``` AGAINST THE ORDER/JUDGMENT IN OA 685/2023 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONER/S/APPLICANT: ``` ``` DR.T.K.SAJEEV AGED 57 YEARS ``` ``` S/O. KUTTAPPANACHARY (LATE), RETIRED AS HOSPITAL SUPERINTENDENT FROM THE DIRECTORATE OF HOMEOPATHY UNDER THE AYUSH DEPARTMENT, RESIDENT OF CHUNDANGAPARAMBIL, KARUVISSERY P.O, KOZHIKODE ., PIN - 673010 ``` ``` BY ADVS. G.SUDHEER R.HARIKRISHNAN (H-308) SMRITHI S.S. ``` ## **`RESPONDENT/S/RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 SECRETARY TO GOVERNMENT AYUSH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`3 PRINCIPAL & CONTROLLING OFFICER HOMOEPATHIC MEDICAL COLLEGES IN KERALA, GOVT. HOMOEPATHIC MEDICAL COLLEGE, IRANIMUTTAM,`** ``` OP(KAT) NOs. 233, 269 and 369 OF 2023 ``` ``` 3 ``` ``` MANACAUD P.O, THIRUVANANTHAPURAM, PIN - 695009 BY ADVS. GOVERNMENT PLEADER SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL SABEENA P. ISMAIL, GOVERNMENT PLEADER() ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 25.10.2023, ALONG WITH OP(KAT).233/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(KAT) NOs. 233, 269 and 369 OF 2023 ``` ``` 4 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 25[TH] DAY OF OCTOBER 2023 / 3RD KARTHIKA, 1945 ``` ## **`OP(KAT) NO. 369 OF 2023`** ``` AGAINST THE ORDER DATED 05.04.2023 IN O.A.(EKM) NO.1885 OF 2022 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL ``` ## **`PETITIONER/S/APPLICANTS:`** - **`1 THE KERALA GOVERNMENT HOMOEO MEDICAL OFFICERS ASSOCIATION,REF. NO.62/1996, SECRETARIAT, AUGRAHA, VADAKODE P.O., ERNAKULAM-682021 REPRESENTED BY ITS PRESENT STATE PRESIDENT DR.AJITH KUMAR V.G, AGED 55 YEARS, CHIEF MEDICAL OFFICER, GOVERNMENT HOMOEO DISPENSARY, BEYPORE, KOZHIKODE-RESIDING AT SREELAKSHMI, CHELANNUR P.O, KOZHIKOD, PIN - 673616`** - **`2 DR.SUMA K.B AGED 56 YEARS AGED 56, W/O BABUMON P.M, R, RETD. CHIEF MEDICAL OFFICER, GOVERNMENT HOMOEO DISPENSARY, THALAYOLAPARAMBU, VADAYAR P.O., KOTTAYAM RESIDING AT PANAPARAMBI HOUESE, ELACKAD P.O, VAYALA (VIA), KOTTAYAM, PIN - 686587`** - **`3 DR.RAMLATH BEEVI T.M, AGED 56 YEARS, D/O MUHAMMED KUNU O.S, RETD. CHIEF MEDICAL OFFICER, GOVERNMENT HOMOEO DISPENSARY, PATTANAKKAD, ALAPPUZHA-688531 RESIDING AT BISMI MANZIL, PANAVALLY P.O, CHERTHALA, ALAPPUZHA., PIN - 688526`** - **`4 DR.MANOJ C.D`** ``` OP(KAT) NOs. 233, 269 and 369 OF 2023 ``` ``` 5 ``` ``` AGED 56 YEARS S/O DEVADAS.K, RETD. CHIEF MEDICAL OFFICER, GOVERNMENT HOMOEO DISPENSARY, VADAKKEVILA P.O, KOLLAM-691010 RESIDING AT GOUTHAMAM, MAYYANAD P.O, KOLLAM, PIN - 691303 ``` ``` BY ADVS. SABU GEORGE P.B.KRISHNAN P.B.SUBRAMANYAN MANU VYASAN PETER ``` ## **`RESPONDENT/S/RESPONDENTS:`** - **`1 STATE OF KERALA REPRESENTED BY ITS CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE SECRETARY TO GOVERNMENT, AYUSH(B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`3 THE SECRETARY TO GOVERNMENT FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`4 THE DIRECTOR OF HOMEOPATHY DIRECTORATE, EAST FORT, THIRUVANANTHAPURAM, PIN - 695023`** - **`BY ADVS. SHRI.ASOK M.CHERIAN, ADDL. ADVOCATE GENERAL ADVOCATE GENERAL OFFICE KERALA SABEENA P.ISMAIL(K/994/2007) GOVERNMENT PLEADER`** ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 25.10.2023, ALONG WITH OP(KAT).233/2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` OP(KAT) NOs. 233, 269 and 369 OF 2023 ``` ## **`6`** ## **`JUDGMENT`** ## **`[OP(KAT) Nos.233/2023, 269/2023, 369/2023]`** ## **`A.MUHAMED MUSTAQUE(J)`** ``` The petitioners in these original petitions are medical officers of AYUSH Department. They are Ayurveda and Homeopathy doctors. They claimed parity of retirement age at par with doctors under the Health Service Department. Admittedly, these doctors are working under the separate department called AYUSH Department under the State of Kerala. The Allopathy doctors are working under the Health Service Department. The Government enhanced the retirement age of doctors under the Health Service Department to 60 years. However, the Government did not extend the retirement age of medical officers under the AYUSH Department. Their age of retirement is 56 years as far as those who are entered in service on or before 01.04.2013. After 01.04.2013, based on National Pension Scheme, the age of retirement of the medical officers under the AYUSH Department is enhanced to 60 years. ``` ``` 2.Some of the medical officers working under ``` ``` OP(KAT) NOs. 233, 269 and 369 OF 2023 ``` ``` 7 ``` ``` Medical and AYUSH Department approached the Kerala Administrative Tribunal by filing O.A.No.672/2020 and connected matters. The Tribunal, after placing reliance on the Apex Court judgment inNorth Delhi Municipal Corporation v. Dr.Ram Naresh Sharma and Others reported in [(2021) SCC Online SC 540](NDMC for short), sustained the challenge and ordered that the doctors under the AYUSH Department are also entitled to the benefit of enhanced stage of superannuation as applicable to the medical officers under the Health Service Department. The State of Kerala approached this Court with O.P.(KAT)No.142 of 2022 and connected matters, whereby, by judgment dated 01.07.2022, the Division Bench of this Court held that the Tribunal wrongly premised the judgment inNDMC case (supra) as the ratio in that case has no application in the present matter. According to the Division Bench, what was considered in the NDMC case (supra) was that, there cannot be two classes of person in the same stream based on the Government Order. In the sense, the Ministry of AYUSH issued an order dated 24.11.2017, enhancing the age of retirement of AYUSH doctors to 65 years with effect from 27.09.2017. The Apex Court held that, it would operate ``` ``` OP(KAT) NOs. 233, 269 and 369 OF 2023 ``` ``` 8 ``` ``` retrospectively to all such classes of doctors working under the AYUSH Department and there cannot be a cut-off date based on the prospective operation of the Government Order with effect from 27.09.2017. Accordingly, the Division Bench directed the Medical Officer to approach the Government with representation. The representation was considered by the Government and rejected, resulting in initiating present challenge. ``` ``` 3.The age of retirement is a policy decision of the Government. There cannot be any dispute with regard to the the fact that both doctors are performing different duties and they cannot be equated in terms of responsibilities and duties. The Apex Court in State of Gujarat and Others v. Dr.P.A. Bhatt and Others reported in [(2023) SCC Online SC 503], kept distinction in mind while sustaining a challenge made by the State of Gujarat as against the order of the High Court of Gujarat to treat BAMS Degree Holder (Bachelor of Ayurved in Medicine and Surgery) at par with the doctors holding MBBS Degree. The Apex Court held that, they have to be treated separately for the purpose of service conditions, including pay and other benefits. ``` ``` In the light of the above judgment, it is futile to ``` ``` OP(KAT) NOs. 233, 269 and 369 OF 2023 ``` ``` 9 ``` ``` argue that the medical doctors under the Health Service Department and medical officers under the AYUSH Department have to be treated at par. In the light of fact that the Government is not proposing to enhance the age of medical officers under the AYUSH Department, the Court cannot compel Government to enhance the age of such doctors. The parameters of judicial review is limited, the Government having refused, the Court can only interfere with such decision only when the Court is able to form an opinion that both categories of doctors formed in the same class and they cannot be distinguished or separated by any rational norms. ``` ``` Having found that there form a distinct class with distinct responsibilities and duties, the Government is justified in declining the request for enhancement of age. We find no reason to interfere with the order of Tribunal. Thus the original petitions are dismissed. ``` ``` Sd/- ``` ## **`A.MUHAMED MUSTAQUE, JUDGE`** ``` Sd/- ``` ## **`SHOBA ANNAMMA EAPEN, JUDGE`** RK ## **`OP(KAT) NOs. 233, 269 and 369 OF 2023`** ## **`10`** ## **`APPENDIX OF OP(KAT) 233/2023`** ``` PETITIONER ANNEXURES Annexure A1THE TRUE COPY OF G.O.(P) NO.01/2013/FIN DATED 01-01-2013. Annexure A2THE TRUE COPY OF G.O.(MS)NO.169/2017/H &FWD DATED 28-11-2017. Annexure A3THE TRUE COPY OF G.O.(MS)NO.124/2015/H &FWD DATED 18-06-2015. Annexure A4THE TRUE COPY OF THE NOTIFICATION NO.G.S.R.27(E) F.NO.25012/4/2016.ESTT (A-IV) DATED 05-01-2018 ISSUED BY THE CENTRAL GOVERNMENT. Annexure A5THE TRUE COPY OF THE JUDGMENT DATED 31- 01-2019 IN W.P.(C) NO.1951/2012 AND CONNECTED CASES OF THE HON'BLE HIGH COURT OF DELHI REPORTED IN CDJ2019DHC 103 Annexure A6THE TRUE COPY OF THE JUDGMENT DATED 10- 05-2019 IN SLP NO.11944/2019 OF THE HON'BLE SUPREME COURT REPORTED IN CDJ 2019 SC 737. Annexure A7TRUE COPY OF THE ORDER DATED 11-05-2022 IN O.A.(EKM) NO.1593/2021. Annexure A8THE TRUE COPY OF THE JUDGMENT DATED 01- 07-2022 IN O.P.(KAT)NO.142/2022. Annexure A9TRUE COPY OF THE JUDGMENT DATED 25-07- 2022 IN SLP NO.12507/2022. Annexure A10TRUE COPY OF THE G.O.(RT)NO.416/2022/AYUSH DATED 27-09- 2022. Annexure A11TRUE COPY OF THE JUDGMENT DATED 03-08- 2021 IN CIVIL APPEAL NO.4578/2021. Annexure A12THE TRUE COPY OF JUDGMENT DATED 08-08- 2018 IN W.P.(C)NO.4071/2017 OF HON'BLE HIGH COURT OF JHARKHAND. Exhibit P1TRUE COPY OF THE ORIGINAL APPLICATION NO.666/2023 ALONG WITH ANNEXURES A1 TO A12 Exhibit P2TRUE COPY OF THE JUDGMENT IN O.A.NO.1885/2022 DATED 05 - 04 - 2023 . ``` ## **`OP(KAT) NOs. 233, 269 and 369 OF 2023`** ``` 11 ``` ``` Exhibit P3 ``` ``` TRUE COPY OF THE ORDER DATED 26-04-2023 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM IN OA(EKM). NO.666/2023 ``` ## **`OP(KAT) NOs. 233, 269 and 369 OF 2023`** ## **`12`** ## **`APPENDIX OF OP(KAT) 269/2023`** - **`PETITIONER EXHIBITS Exhibit P1 COPY OF OA NO 605 /2023 ON THE FILE OF KAT, THIRUVANANTAPURAM`** - **`Annexure A1 - TRUE COPY OF GO(MS) NO 167/17/H & FWD DT 28.11.17`** - **`Annexure A2 - TRUE COPY OF COMMON ORDER DT 11.5.2022 IN OA ( EKM) NO 1234/2020 OF THE KAT ,ERNAKULAM`** - **`Annexure A3COPY OF COMMON JUDGMENT IN OP(KAT) NO 185/2022 AND CONNECTED CASE DT 1.7.2022`** - **`Annexure A4 - TRUE COPY OF THE ORDER IN SLP(C) NO 14256- 14262/2022 DT 26.8.2022 OF HONOURABLE SUPREME COURT.`** - **`Annexure A 5- TRUE COPY OF THE ORDER IN SLP(C) NO 12507/2022 DT 25.7.2022 OF HONOURABLE SUPREME COURT.`** - **`Annexure A6 - COPY OF GO(RT) NO 416/2022/AYUSHDT 27.9.2022`** - **`Annexure A7 - COPY OF GO(MS) NO 124/2015/H&FWDDT 18.06.2015`** - **`Annexure A8 - TRUE COPY OF THE JUDGMENT OF HONOURABLE SUPREME COURT IN CIVIL APPEAL NO 4578/2021 DT 3.8.2021`** - **`Exhibit P2 COPY OF ORDER IN OA NO 605 /2023 OF KAT , THIRUVANANTHAPURAM DT 18.5.2023`** ``` 13 ``` ## **`OP(KAT) NOs. 233, 269 and 369 OF 2023`** ## **`APPENDIX OF OP(KAT) 369/2023`** ``` PETITIONER ANNEXURES Annexure-A1TRUE COPY OF THE ORDER DATED 28-11-2017 VIDE G.O(MS) NO.169/17/H&FWD Annexure-A2TRUE COPY OF THE JUDGMENT IN CIVIL APPEAL NO.4578 OF 2021 DATED 03-03-2021 OF THE HON'BLE SUPREME COURT Annexure-A3TRUE COPY OF THE ORDER IN OA (EKM) 1593 OF 2021 DATED 11-05-2022 RENDERED BY THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL ``` - **`Annexure-A4 TRUE COPY OF THE JUDGMENT IN OP(KAT) NO.142 OF 2022 DATED 01-07-2022 RENDERED BY THE HON'BLE HIGH COURT.`** - **`Annexure-A5 TRUE COPY OF THE JUDGMENT IN SLP NO.12507/2022 DATED 25-07-2022 RENDERED BY THE HON'BLE HIGH COURT`** - **`Annexure-A6 TRUE COPY OF THE GO(RT) 461/2022 DATED 27-09-2022 ISSUED BY THE GOVERNMENT`** - **`Exhibit -P1 A TRUE COPY OF OA(EKM)1885 OF 2022 DATED 26-10-2022 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL`** - **`Exhibit-P2 A TRUE COPY OF THE REPLY STATEMENT DATED 13-12-2022 FILED BY RESPONDENTS IN OA(EKM)1885 OF 2022 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL`** - **`Exhibit-P3 A TRUE COPY OF THE REJOINDER FILED BY THE PETITIONERS IN OA(EKM)1885 OF 2022 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL, DATED 04-02-2023`** - **`Exhibit-P4 A CERTIFIED COPY OF THE ORDER DATED 0504-2023 IN OA(EKM)1885 OF 2022 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL`**