W.P.(C) Nos. 32694/2022 and connected cases

# **`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 ``` ## **`WP(C) NO. 32694 OF 2022`** ## **`PETITIONER/S:`** - **`1 ALL KERALA PRIVATE COLLEGE TEACHERS ASSOCIATION(AKPCTA), RECOGNIZED BY THE GOVT. OF KERALA GO.(MS) NO.17/89), DR.PADIYAR MEMORIAL HOMOEPATHIC MEDICAL`** - **`COLLEGE,CHOTTANIKKARA UNIT,REPRESENTED BY ITS SECRETARY DR.N.HARIKUMAR,S/O N.NEELAKANDAN POTTI, AGED 56 YEARS, MIG 208, PRANAVAM, GANDHI NAGAR, KOCHI 28, READER, DEPARTMENT OF MATERIA MEDICA, DR. PADIYAR MEMORIAL HOMOEPATHIC MEDICAL COLLEGE, CHOTTANIKKARA P.O, ERNAKULAM - 682 312.`** - **`2 DR.N.MAHESH KUMAR PROFFESSOR DR.PADIYAR MEMORIAL HOMOEPATHIC MEDICAL COLLEGE, CHOTTANIKKARA, DEPARTMENT OF MATERIA MEDICA, KALATHIL HOUSE, N NAGAR,(P O), CHERTHALA, ALAPUZHA - 688 559.`** ## **`BY ADV SAJEEV KUMAR K.GOPAL`** ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.`** - **`2 THE PRINCIPAL SECRETARY TO THE GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.`** - **`3 THE PRINCIPAL SECRETARY TO THE GOVERNMENT, AYUSH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695 001.`** - **`4 THE PRINCIPAL AND CONTROLLING OFFICER, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM-695 009.`** - **`THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON`** ``` 25.10.2023 ALONG WITH W.P.(C) NOS.17137 OF 2023 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C) NOs. 32694 OF 2022 and connected cases ``` ``` 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 ``` ## **`WP(C) NO. 17137 OF 2023`** ## **`PETITIONER/S:`** - **`1 DR.K.V.ASHA AGED 60 YEARS W/O BALAN, AGED 60 YEARS, RESIDING AT VIII/366, KARUNAMADHAVAM, AMBALAVATTOM, EDARIKODE 676 501,PROFESSOR, VAIDYARATNAM, P.S.VARIER AYURVEDA COLLEGE, KOTTAKKAL, PIN - 676501`** - **`2 DR.GEORGE M.J AGED 60 YEARS, S/O JOSEPH M.G.,AGED 60 YEARS, RESIDING AT MADATHARIYIL, EDARIKODE P.O.,MALAPPURAM DISTRICT-PIN 676 501,PROFESSOR, VAIDYARATNAM P.S.VARIER AYURVEDA COLLEGE, KOTTAKKAL, PIN - 676501`** - **`BY ADV SAJEEV KUMAR K.GOPAL`** ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 696001`** - **`2 THE PRINCIPAL SECRETARY TO THE GOVERNMENT , AYUSH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`3 THE DIRECTOR, AYURVEDA MEDICAL EDUCATION DIRECTORATE OF AYURVEDA MEDICAL EDUCATION, AROGYA BHAVAN,M.G.ROAD, THIRUVANANTHAPURAM, PIN - 696001`** - **`4 THE EXECUTIVE OFFICER`** ``` W.P.(C) NOs. 32694 OF 2022 and connected cases ``` ``` 3 ``` ``` THE KERALA AYURVEDIC STUDIES AND RESEARCH SOCIETY, KOTTAKKAL P.O.,EDARIKODE,MALAPPURAM DISTRICT, PIN - 676501 ``` ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2023 ALONG WITH W.P.(C) NOS.32694 OF 2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C) NOs. 32694 OF 2022 and connected cases ``` ``` 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 ``` ## **`WP(C) NO. 33359 OF 2023`** ## **`PETITIONER/S:`** ``` 1DR.J.HARIKRISHNA PILLAI AGED 59 YEARS S/O K.JANARDHANAN PILLAI, 'OCTOBER', NEAR S.N JUNCTION, TRIPUNITHURA P.O, ERNAKULAM DISTRICT, PROFESSOR, DEPARTMENT OF COMMUNITY MEDICINE, DR.PADIYAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE,CHOTTANIKKARA P.O.,ERNAKULAM DISTRICT., PIN - 682301 ``` - **`2 DR.SAJU PAUL AGED 59 YEARS S/O O.M.PAULOSE, ORUPPOOPPIL, KANINADU, PUTHENCRUZ, ERNAKULAM , READER, DEPARTMENT OF PHARMACY, DR.PADIYAR MEMORIAL HOMOEOPATHIC MEDICAL COLLEGE,CHOTTANIKKARA P.O.,ERNAKULAM DISTRICT, PIN - 682312`** - **`3 DR.SREEDEVI P.G AGED 59 YEARS`** - **`W/O K.RAMADAS, RESIDING AT SABARIGIRI, NEAR UNION CLUB P.O., KOTTAYAM , PROFESSOR, DEPARTMENT OF MATERIA MEDICA, ATHURASRAMAM, N.S.S.HOMOEO MEDICAL COLLEGE, S.PURAM P.O., KURICHY, KOTTAYAM, PIN - 686532`** - **`4 DR.C.AJITH KUMAR AGED 59 YEARS`** - **`S/O P.CHANDRASEKHARAN NAIR, SREEVALSAM,ELAMANNUR P.O., PATHANAMTHITTA DISTRICT , PROFESSOR, DEPARTMENT OF PRACTICE OF MEDICINE, ATHURASRAMAM, N.S.S.HOMOEO MEDICAL COLLEGE, S.PURAM P.O., KURICHY, KOTTAYAM, PIN - 691524`** ``` W.P.(C) NOs. 32694 OF 2022 and connected cases ``` ``` 5 ``` ``` BY ADV SAJEEV KUMAR K.GOPAL ADV.ASHOK.M.CHERIAN ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA REPRESENTED BY THE CHIEF SECRETARY TO THE GOVERNMENT, GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`2 THE PRINCIPAL SECRETARY TO THE GOVERNMENT FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`3 THE PRINCIPAL SECRETARY TO THE GOVERNMENT AYUSH DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001`** - **`4 THE PRINCIPAL AND CONTROLLING OFFICER GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM, PIN - 695009`** ``` THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25.10.2023 ALONG WITH W.P.(C) NOS.32694 OF 2022 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` W.P.(C) NOs. 32694 OF 2022 and connected cases ``` ``` 6 ``` ## **`JUDGMENT`** ## **`[W.P.(C) Nos.32694/2022, 17137/2023, 33359/2023]`** ## **`A.MUHAMED MUSTAQUE(J)`** ``` These writ petitions are filed by the teaching staff and Association of Private Teachers Association, who were engaged in Government Aided Homeopathic and Ayurveda Medical College. The Government has enhanced the retirement age of teaching staff in Medical Education Service to 62 years during 2017. However, no corresponding enhancement was made to the doctors working under the Homeopathic and Ayurveda Medical Education. The petitioners have approached this Court aggrieved by the Government Order rejecting this claim for retirement age at 62 years in parity with the doctors in Medical Education Service. ``` ``` 2.The allopathy doctors and teachers are coming under the Medical Education Department. The teaching staff in various Homeopathic and Ayurveda Medical College are coming under the AYUSH Department. ``` ``` 3.The Government of Kerala decided to enhance the ``` ``` 7 ``` ## **`W.P.(C) NOs. 32694 OF 2022 and connected cases`** ``` retirement age of doctors in the Medical Education Service upto 60 years with effect from 01.05.2009. Similarly, the Government also enhanced the age of retirement of teaching staff in Homeopathic Medical College with effect from 09.04.2012. In respect of teaching staff under the Ayurveda Medical College, the age of retirement is extended to 60 years with effect from 07.04.2010. The Government further extended the age of retirement of teachers in Medical Education Department to 62 years with effect from 28.11.2017. However, no corresponding changes were made to enhance the retirement age of teaching staff under the AYUSH Department. This resulted in the petitioners approaching this Court with these writ petitions. ``` ``` 4.Based on the directions of this Court, the Government considered the representations and passed impugned order dated 27.09.2022, refusing to enhance the retirement age of teaching staff under the AYUSH Department. In these writ petitions, the petitioners questioned the order of the Government. There are three writ petitioners, one at the instance of association of teachers, and others at the instance of Teaching staffs engaged in Homeopathic and Ayurveda Medical College. ``` ``` 8 ``` ## **`W.P.(C) NOs. 32694 OF 2022 and connected cases`** ``` 5.The learned Counsel for the petitioners placing reliance onNorth Delhi Municipal Corporation v. Dr.Ram Naresh Sharma and Others reported in [(2021) SCC Online SC 540](NDMC for short), submitted that the issue is covered in favour of the writ petitioners. According to the learned Counsel, the Apex Court sustained a challenge as against the discrimination of teachers working under the AYUSH Department with respect to the superannuation age. ``` ``` 6.A careful reading of the above judgment would shows that the above judgment has no application as it clearly indicates that the Government enhanced the age of retirement of medical officers under the AYUSH Department of Central Government which confined the benefit of such age of retirement with effect from 24.11.2017. The Apex Court noted that there cannot be two classes of doctors in same category with reference to the date of Government Order. Accordingly, it was ordered that the Government Order giving benefit of enhanced retirement age are equally applicable to all doctors and would operate retrospectively. ``` ``` 9 ``` ## **`W.P.(C) NOs. 32694 OF 2022 and connected cases`** ``` 7.The Apex Court in State of Gujarat and Others v. Dr.P.A. Bhatt and Others reported in [(2023) SCC Online SC 503],held that the doctors working under the Medical Education Department and AYUSH Department, were not dischargingthesame duties. Accordingly, the Apex Court sustained a challenge as against the order of the the High Court of Gujarat treating them as equal for the purpose of service conditions, including pay and other benefits. ``` ``` We also note in earlier round that when similar challenge was made for enhancement of retirement age of teaching staff at par with medical faculty, this Court repelled that challenge and the Apex Court finally in Dr.Prakasan M.P. and Others v. State of Kerala and Another reported in [(2023) SCC online SC 1074] upheld the decision of this Court. The question that was considered, is similar to one in this case that, when the Government originally enhanced the retirement age from 50-60 years of the medical doctors under the Medical Education Service, similar benefit was not given to doctors working under the AYUSH Department. In a challenge made by the teaching ``` ``` 10 ``` ## **`W.P.(C) NOs. 32694 OF 2022 and connected cases`** ``` faculty of Homeopathy Medical Colleges, (in W.A.No.1338 of 2010), this Court repelled the challenge and finally the decision of this Court was upheld by the Apex Court in Dr.Prakash(Supra). If that be the case, we find no merit in these writ petitions and all these writ petitions stand dismissed. ``` ``` Sd/- ``` ``` A.MUHAMED MUSTAQUE JUDGE ``` ``` Sd/- ``` ``` SHOBA ANNAMMA EAPEN JUDGE ``` RK ``` W.P.(C) NOs. 32694 OF 2022 and connected cases ``` ``` 11 ``` ## **`APPENDIX OF WP(C) 32694/2022`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ORDER PASSED BY THE 1ST RESPONDENT DATED 14-01-2010 VIDE G.O.(MS) NO.14/2010/H & FWD. Exhibit P2TRUE COPY OF THE GOVERNMENT ORDER VIDE G.O.(MS) NO. 108/2012/H & FWD DATED 09- 04-2012. Exhibit P3:TRUE COPY OF THE GOVERNMENT ORDER DATED 28-11-2017 VIDE NO. G.O.(P) NO.169/17/HEALTH AND FAMILY WELFARE DEPARTMENT DATED 28-11-2017. Exhibit P4TRUE COPY OF THE GOVERNMENT ORDER VIDE G.O.(P) NO.425/2009/H & F WD DATED 14- 12-2009. Exhibit P5TRUE COPY OF THE GOVERNMENT ORDER VIDE G.O.(P) NO.7/2016/FIN.DATED 20-01-2016. Exhibit P6TRUE COPY OF THE GOVERNMENT ORDER VIDE G.O.(P) NO.54/2020/H & FWD DATED 11-09- 2020. Exhibit P7TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT OF INDIA IN CIVIL APPEAL NO.4578/2021 DATED 03-08-2021. Exhibit P8TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.20944 OF 2021 DATED 01-10-2021. Exhibit P9TRUE COPY OF THE ORDER G.O.(RT) NO.32/2022/AYUSH DATED 25-01-2022. Exhibit P10TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.4128 OF 2022 DATED 05-08-2022. Exhibit P11TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE GOVERNMENT DATED NIL. Exhibit P12TRUE COPY OF THE COVERING LETTER DATED 29-08-2022. Exhibit P13TRUE COPY OF THE GOVERNMENT ORDER DATED 27-09-2022 VIDE G.O.(P) NO.416/2022/AYUSH. ``` ``` W.P.(C) NOs. 32694 OF 2022 and connected cases ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 17137/2023`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ORDER NO.E1-771/89/KASRS DATED 16-03-1990 ISSUED BY THE EXECUTIVE DIRECTOR OF THE SOCIETY ALONG WITH TYPED COPY ``` ``` Exhibit P2TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED BY THE EXECUTIVE DIRECTOR OF THE SOCIETY DATED 06-11-2017 VIDE NO.E1- 2370/2016/KASRS PERTAINING TO THE 1ST PETITIONER. ``` - **`Exhibit P3 TRUE COPY OF THE APPOINTMENT ORDER DATED 01-08-1991 VIDE ORDER NO.E1771/89/KASRS ISSUED BY THE EXECUTIVE DIRECTOR OF THE SOCIETY PERTAINING TO THE 2ND PETITIONER.`** ``` Exhibit P4TRUE COPY OF THE EXPERIENCE CERTIFICATE ISSUED TO THE 2ND PETITIONER VIDE NO.E1/1391/2019/KASRS DATED 03-10-2019 BY THE EXECUTIVE DIRECTOR OF THE SOCIETY. Exhibit P5TRUE COPY OF THE ORDER ISSUED BY THE SECRETARY TO THE GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT DATED 14-01- 2010 VIDE G.O.(MS) NO.14/2010/H & FWD. Exhibit P6TRUE COPY OF THE GOVERNMENT ORDER VIDE G.O.(MS) NO.108/2012/H & FWD DATED 09- 04-2012 Exhibit P7TRUE COPY OF THE GOVERNMENT ORDER DATED 28-11-2017 VIDE NO. G.O.(P) NO.169/17/HEALTH AND FAMILY WELFARE DEPARTMENT DATED 28-11-2017. Exhibit P8TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT OF INDIA IN CIVIL APPEAL NO.4578/2021 DATED 03-08-2021. Exhibit P9TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT DATED 11-10-2021. Exhibit P10TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.23820 OF 2021. DATED 08 - 11 - 2021. ``` ``` 13 ``` ## **`W.P.(C) NOs. 32694 OF 2022 and connected cases`** ``` Exhibit P11TRUE COPY OF THE GOVERNMENT ORDER VIDE G.O.(RT) NO.168/2022/AYUSH DATED 28-04- 2022. Exhibit P12TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT DATED 05-08-2022 IN W.P. © 15915 OF 2022. Exhibit P13TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS ON 26-08- 2022 Exhibit p14TRUE COPY OF THE COVERING LETTER BY WHICH EXHIBIT P-13 WAS FORWARDED TO THE GOVERNMENT DATED 26-08-2022 Exhibit P15TRUE COPY OF THE GOVERNMENT ORDER DATED 27-09-2022 VIDE G.O.(P) NO.416/2022/AYUSH. Exhibit P16TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.31593 OF 2022 DATED 04-01-2023 Exhibit P17TRUE COPY OF THE ORDER VIDE G.O.(RT) NO.148/2023/AYUSH DATED 09-05-2023 Exhibit P18TRUE COPY OF THE ORDER NO. 2021/2420/E1(KASRS) DATED 10-05-2023 ISSUED BY THE EXECUTIVE DIRECTOR OF THE 4TH RESPONDENT COLLEGE RESPONDENT EXHIBITS ``` ``` EXHIBIT R1(a)A TRUE COPY OF THE JUDGMENT DATED 01.07.2022 IN OPKAT No.139/2022. EXHIBIT R1(b)A TRUE COPY OF THE ORDER OF HONOURABLE SUPREME COURT IN SLP No.12507/2022, DATED 25.07.2022. EXHIBIT R1(c)A TRUE COPY OF THE SUPREME COURT DECISION IN STATE OF GUJARAT AND OTHERS etc.. Vs. Dr. P.A Bhatt and Others etc. (2023 live law SC 350) ``` ``` W.P.(C) NOs. 32694 OF 2022 and connected cases ``` ``` 14 ``` ## **`APPENDIX OF WP(C) 33359/2023`** ``` PETITIONER EXHIBITS Exhibit P1TRUE COPY OF THE ORDER DATED 14-01-2010 VIDE G.O.(MS) NO.14/2010/H & FWD Exhibit P2TRUE COPY OF THE GOVERNMENT VIDE G.O. (MS) NO.108/2012/H & FWD DATED 09-04- 2012 ``` ``` Exhibit P3TRUE COPY OF THE GOVERNMENT ORDER DATED 28-11-2017 VIDE NO. G.O.(P) NO.169/17/HEALTH AND FAMILY WELFARE DEPARTMENT DATED 28-11-2017 Exhibit P4TRUE COPY OF THE JUDGMENT OF THE HON'BLE SUPREME COURT OF INDIA IN CIVIL APPEAL NO.4578/2021 DATED 03-08-2021 Exhibit P5TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.20944 OF 2021 DATED 04-10-2021 Exhibit P6TRUE COPY OF THE ORDER G.O.(RT) NO.32/2022/AYUSH DATED 25-01-2022 Exhibit P7TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN W.P.(C) NO.4128 OF 2022 DATED 05-08-2022 Exhibit P8TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONERS BEFORE THE GOVERNMENT DATED NIL Exhibit P9TRUE COPY OF THE GOVERNMENT ORDER DATED 27-09-2022 VIDE G.O.(P) NO.416/2022/AYUSH Exhibit P10TRUE COPY OF THE ORDER VIDE G.O.(RT) NO.148/2023/AYUSH DATED 09-05-2023 DATED 09-05-2023 ```