IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6236 of 2011 Dr.Mahesh Thakur …Petitioner Versus 1. The State Of Bihar 2. The Secretary, Panchayati Raj Department, Govt. of Bihar, Patna 3. The Deputy Secretary, Panchayati Raj Department, Govt. of Bihar, Patna 4. Zila Parishad, Sitamarhi through its Executive Officer-cum- Deputy Development Officer, Sitamarhi. 5. Deputy Development officer-cum- Executive Officer, Zila Parishad, Sitamarhi …..Respondents For the petitioner :M/s Patanjali Rishi & Mritunjay Kumar Fort the State Mr. Alok Kr. Singh, J.C. to G.P.15, ----------- 06. 02.08.2011 Heard learned counsel for the petitioner and learned counsel for the State. In spite of service of notice on respondent nos.4 and 5, they have not appeared in the present proceeding to oppose the prayer made in the application. Petitioner approached this court assailing the order contained in memo no. 59 dated 07.02.2011 (Annexure-8) passed by the respondent Deputy Development Commissioner- cum-chief Executive Officer, Zila Parishad, Sitamarhi (respondent no.5), whereby the said respondent refused to rescind the order contained in memo no. 718 dated 31.12.2009 (Annexure-6) whereby the petitioner was directed to superannuate from services of the Zila Parishad on attaining 60 years of age with effect from 31.12.2009. Petitioner was working as Ayurvedic Medical 2 Officer under Zila Parishad. By notification contained in memo no. 1262 dated 25.02.2009 (Annexure-1), issued by the Deputy Secretary in the department of Finance, Govt. of Bihar, Rule 73 of the Bihar Service Code (for short „the Code‟) was amended and the age of superannuation of the doctors working in Bihar State Health Service and Bihar Medical Education Service was extended from 60 to 62 years. It is the case of the petitioner that the same extension of age of retirement was granted to the doctors of indigenous medicine streams, namely, Ayurvedic, Unani and Homeopathic. It is the submission of the petitioner that in the light of the said amendment effected in Bihar Service Code, the petitioner was entitled to continue in service until he attains the age of 62 years. It is argued that all the Zila Parishads in the State of Bihar have already adopted Bihar Service Code and, as such, any amendment brought therein would automatically be applicable to the employees of the Zila Parishad. In the light of the aforesaid facts, the petitioner made representation for extension of his age of superannuation and to rescind the order contained in annexure-7 which was rejected by order dated 07.02.2011(Annexure-8) passed by respondent no.5 on the ground that petitioner had already superannuated prior to the decision of the Court. The said issue was considered by this Court in CWJC No.18372 of 2009 (Dr.Nabdeshwar Tripathy & Ors. Vs. State of Bihar & Ors.) and this Court considering the amendment brought in Rule 73 of the Code, held that the age of superannuation of the 3 doctors serving Zila Parishad as Doctors of Indigenous System of Medicine would also be entitled to the benefit. In the light of the said order, the petitioner filed representation for rescinding the order contained in Annexure-6 which was rejected by order dated 07.02.2011, passed by Respondent-Deputy Development Commissioner-cum-Chief Executive Officer, Zila Parishad which has been impugned. It is further to be noted here that the respondents had made the petitioner retire with effect from 31.12.2009 on attaining 60 years of age. A counter affidavit has been filed on behalf of respondent no.3 (Deputy Secretary, Panchayati Raj Department, Bihar, Patna). Learned counsel with reference to the statement made in paragraphs 4 and 5 submits that the Government in the said department have already issued letter no. 4882 dated 06.07.2010 to all the Zila Parishads to comply with the order of this Court passed in CWJC No. 18372 of 2009 (Annexure-4). By a notification contained in letter no. 1262 dated 25.02.2009, the Government of Bihar in the Department of Finance amended rule 73 of the Code. The second proviso to clause/rule 2 of the Bihar service(Amendment) Code 2009 would show that the benefit of enhancement of age of the doctors of the Bihar Health Service and Bihar Medical Education Service have also been extended to the doctors of indigenous medicines such as Ayurvedic/Homeopathic and Unani. This court in the light of the said amendment (Annexure- 1) disposed of CWJC No. 18372 of 2009 by order dated 4 21.01.2010 (Annexure-4). Paragraphs 5 and 6 whereof read as under: “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 ad not prior thereto. In view of my findings above, Rule 73 of the Bihar Service Code, as amended under notification dated 25.02.2009, 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 the Deputy Development Commissioner, Sheohar, Patna are quashed.” The ratio laid down in the said judgment/order (Annexure-4) would, in my view, applicable to the case of the petitioner also. It has already been noticed that Respondent-Zila Parishad has adopted provisions contained in Bihar Service Code. By amending Rule 73 thereof the age of superannuation of doctors serving the Zila Parishad would stand extended. The counter affidavit filed on behalf of the State-Respondent also admits this position. The writ petition was lodged in this Court on 05.04.2011. By order dated 11.04.2011, respondent no.3 was granted opportunity to file counter affidavit(s). On 12.05.2011, 5 this Court, having found that in spite of service of notice on the counsel retained by the Respondent-Zila Parishad, nobody had appeared on their behalf, directed issuance of notice on them. The operation of the order contained in Aannexure-8 was stayed. In the light of the order passed by this Court in CWJC No. 18372 of 2009 and the notification of the Government dated 25.02.2009 (Annexure-1) as also the stand of the State-Respondent, as reflected from the counter affidavit filed on behalf of respondent no.3, I am satisfied that the application deserves to be allowed. Accordingly, the writ application is allowed in the following terms: (i) The order dated 07.02.2011 (Annexure-8) is quashed and set aside. (ii) Petitioner shall continue in service of the Respondent-Zila Parishad till he attains 62 years of age. (iii) Petitioner shall be paid full salary for the period when the interim order was passed i.e. 12.05.2011, if not already paid. (iv) For the payment of salary of the period between 01.01.2010 to 11.05.2010 the petitioner would file representation before respondent no.4 within 04 weeks and the same shall be disposed of by the said respondent by a speaking order. (v) Period commencing from 01.01.2010 to 6 12.05.2011 shall be counted for the purpose of fixation of pay and retiral benefits, if any. hr ( Kishore K. Mandal )