IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.18372 of 2009 1. DR. NARBDESHWAR TRIPATHY S/O KAMTA TIWARY R/O SHEOPUR, P.O.- KOCHAS, P.S.- SASARAM, DISTT.- ROHTAS 2. DR. MD. AMIRUZZAMAU KHAN S/O LATE KARMATULLAH KHAN R/O VILL.- TAJPUR, P.O.- TAJPUR, P.S.- SHEOHAR, DISTT.- SHEOHAR, PRESENTLY POSTED AS MEDICAL OFFICER IN HOMEOPATHIC DISPENCARY, TAJPUR, ZILA PARISHAD, SHEOHAR, DISTT.- SHEOHAR 3. DR. RISHIKESH PATHAK S/O LATE KISHORI PATHAK AT + P.O.- BASUDEOPUR CHANDEL, P.S.- MAHNAR, DISTT.- VAISHALI PRESENTLY POSTED AS MEDICAL OFFICER, ZILA PARISHAD, HOMEOPATHIC DISPENCARY, MACCHAR GAMA BAZAR, JOGAPATTI, DISTT.- WEST CHAMPARAN 4. DEO PRAYAG SHARMA S/O LATE CHANDRIKA SINGH R/O VILL.- RAMTARI, P.O.- LAIY, P.S.- BIHTA, DISTT.- PATNA 5. DR. LALAN DUBEY S/O LATE SHIVNATH DUBEY R/O VILL.- CHORPOKHAR ENGLISH, P.O.- GANJ BHSHRA, P.S.- DINARA, DISTT.- ROHTASH PRESENTLY POSTED AS MEDICAL OFFICER AYURVEDIC DISPENCARY RUPASH, P.S.- ATHMALGOLA, DISTT.- PATNA Versus 1. THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY PANCHAYATI RAJ DEPARTMENT, GOVT. OF BIHAR, PATNA 2. THE PRINCIPAL SECRETARY PANCHAYATI RAJ DEPARTMENT, GOVERNMENT OF BIHAR, PATNA 3. THE PRINCIPAL SECRETARY DEPARTMENT OF HEALTH, GOVT. OF BIHAR, PATNA 4. THE PRINCIPAL SECRETARY DEPARTMENT OF FINANCE, GOVT. OF BIHAR, PATNA 5. THE DIRECTOR DESICHIKITSHA, GOVT. OF BIHAR, PATNA 6. THE DEPUTY DEVELOPMENT COMMISSIONER - CUM - CHIEF EXECUTIVE OFFICER ZILA PARISHAD, SHEOHAR, DISTT.- SHEOHAR 7. THE DEPUTY DEVELOPMENT COMMISSIONER - CUM - CHIEF EXECUTIVE OFFICER ZILA PARISHAD, PATNA, DISTT.- PATNA 8. THE DEPUTY DEVELOPMENT CUM CHIEF EXECUTIVE OFFICER ZILA PARISHAD, WEST CHAMPARAN, DISTT.- WEST CHAMPARAN ----------- For the petitioners : (1). Tej Bahadur Singh, Senior Advocate. (2). Brajesh Kumar, Advocate. (3). Briskahi Saran Pandey, Advocate. For the Zila Parishad : Mr. Nikesh Kumar, Advocate. For the State : Mr. A.A.G.-7. ======= 2. 21.01.2010. Learned counsel for the petitioners is permitted to correct the annexure number appended with the first supplementary affidavit filed in the instant case. 2. Heard learned counsel for the petitioners, State and the counsel for the Zila Parishad, who has filed counter affidavit. - 2 - 3. Petitioners are the Ayurvedic/ Unani/ Homeopathic doctors serving the different Zila Parishad. They have filed this writ application praying inter alia to direct the different Zila Parishad(s) to abide by the provisions contained in the notification of the State Government bearing Memo No. 1262 dated 25.2.2009, Annexure-6, whereunder Rule 73 of the Bihar Service Code has been amended and the date of superannuation of the indigenous doctors has been extended from 60 years to 62 years and in the light of the notification further prayer is to quash the order bearing Memo No. 285 dated 07.12.2009, Annexure-10 and order bearing Letter No. 388 dated 06.01.2010, Annexure-11, whereunder petitioner nos. 2 and 4 have been superannuated on attaining the age of 60 years. In this connection it is pointed out that the Secretary of the Panchayati Raj Department has issued contrary instructions contained in Memo No. 5485 dated 5.10.2009, Annexure-1, whereunder he has instructed the Deputy Development Commissioner-cum-Chief Executive Officer of all the District Boards/Zila Parishad to superannuate the indigenous doctors serving the Board/Parishad on attaining the age of 60 years as according to the learned Secretary the amendment made in Rule 73 of the Bihar Service Code does not apply to the indigenous doctors serving the Board/Parishad. 4. Learned counsel for the petitioners has assailed the aforesaid instruction of the learned Secretary, Panchayati Raj dated 05.10.2009, Annexure-1 on the ground that the said instruction is contrary to the provisions contained in the amended rules and any executive instructions issued contrary to the rules could not be acted upon by the authorities. In this connection it is further pointed out that the different Zila Parishad(s) have already adopted the Bihar Service Code and any amendment made therein is ipso facto applicable to the employees of the Zila Parishad. - 3 - 5. I see substance in the submission made by the counsel for the petitioners and as the petitioners in the writ petition are serving the Zila Parishad as indigenous doctors, may be in the discipline of Ayurvedic/Homeopathic /Unani, their case for superannuation is required to be considered in the light of second proviso to Rule 73 of the Bihar Service Code, as amended under notification bearing Memo No. 1262 dated 25.2.2009, Annexure-6 and they are entitled to be superannuated on attaining the age of 62 years and not prior thereto. 6. In view of my findings above, Rule 73 of the Bihar Service Code, as amended under notification dated 25.2.2009, Annexure-6 is applicable to all the Zila Parishad(s) and the order to the contrary passed by the Secretary, Panchayati Raj bearing Memo No. 5485 dated 5.10.2009, Annexure-1, Memo No. 285 dated 07.12.2009, Annexure-10 and Letter No. 388 dated 06.01.2010, Annexure-11 passed by Deputy Development Commissioner, Sheohar, Patna are quashed. 7. This writ application is, accordingly, disposed of. P.K.P. (V.N.Sinha,J.)